Thu 05 Feb 2015

Consultation on Expenses and Funding of Civil Litigation in Scotland

The Scottish Government published its consultation on Expenses and Funding of Civil Litigation (the Consultation) last week. It seeks views on proposals designed to implement the Government's aim or ensuring that there is sustainable, effective access to justice for both publically funded and private clients.

The proposals set out include the following:  

  • Changes to damages based agreements which include lifting the ban on solicitors from entering into these types of agreements (with the exception of family matters), the introduction of caps on the amount recoverable in the event of success and the introduction of a framework to regulate persons or bodies offering damages based agreements.
  • Changes to speculative fee arrangements which include the introduction of caps on the success fees which are recoverable.
  • The introduction of qualified one way costs shifting (QOCS) under which pursuers in personal injury cases will not have to meet any defenders' costs when they are unsuccessful unless they have acted inappropriately, for example, fraud, abuse of process or unreasonable conduct.
  • Three different options for the introduction of a multi-party procedure in Scotland.
  • Changes to the audit of accounts of expenses (costs) incurred in litigation including the creation of salaried positions for auditors and changes to the method of charging for the audit of accounts so that this reflects the cost of the work rather than the value of the account.
  • Additional powers for the court to deal with concerns regarding the conduct of legal representatives and make them bear the cost of expenses which are unnecessarily incurred.
  • The extension of the availability of legal aid and advice by way of representation (ABWOR) to legal persons (eg, companies and partnerships) in limited circumstances.

Many of these proposals are familiar as they follow on from recommendations in Sheriff Principal Taylor's Review of Expenses and Funding of Civil Litigation in 2013 in Scotland and Lord Gill's Scottish Civil Courts Review in 2009. 

Perhaps unsurprisingly given its scope there is no draft legislation included in the Consultation. It is open for responses until 24 April 2015 and draft legislation is likely to follow this.

There can be no doubt that the legislation following the Consultation will create change to the funding of civil litigation in Scotland which will impact pursuers, defenders, solicitors and insurance providers.  We will be awaiting the publication of the subsequent bill with interest.

If you wish to view the Consultation documents you can access these here.

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