On the 6th of September, the Scottish Government issued its legislative programme for 2016-17. Included within the programme is the Expenses and Funding of Civil Litigation Bill, an important part of the Scottish Government’s commitment to making the civil justice system more accessible, affordable and equitable. The Bill implements recommendations of the Review carried out by Sheriff Principal Taylor (which reported in 2013), and contains proposals for primary legislation aimed at increasing access to justice by enhancing funding options and creating greater predictability and certainty in relation to the costs of litigation. Other recommendations in the Taylor Report are being taken forward by the Scottish Civil Justice Council.  

The Bill includes provisions to:

  • introduce sliding caps for success fee agreements;
  • allow damage-based agreements to be enforceable by solicitors;
  • allow for new court rules in respect of third party and pro bono funded litigation, and for legal
  • representatives to bear the cost where their conduct has caused needless cost;
  • allow for the introduction of a multi-party action procedure in Scotland;
  • introduce qualified one-way costs shifting (QOCS) for personal injury cases and appeals, including clinical negligence, and specify the circumstances when the benefit of QOCS would not apply; and
  • enable the Auditor of the Court of Session and sheriff court auditors to become salaried posts within the Scottish Courts and Tribunal Service.

It was originally anticipated that the Bill would appear in the 2015-16 legislative programme, but proposals for reform were not brought forward at that stage.  There is currently no information about exactly when the Bill will be introduced in the course of the next Parliamentary session.  We will provide updates as the Bill progresses through Parliament.  In the meantime, you can find more information here.