Scotland’s court system is undergoing significant reform. One strand of this relates to the costs and funding of civil litigation. A recent Scottish Government Consultation identifies the unpredictability of civil litigation costs as impacting negatively on access to justice and sets out a series of proposed reforms. This follows the Review of Expenses and Funding of Civil Litigation in Scotland carried out by Sheriff Principal Taylor and presented to the Scottish Government in September 2013.
The current position and proposed reforms in key areas are:
Click here to view table.
The Consultation identifies that traditionally litigation in Scotland was funded privately or through legal aid or trade union funding. Recent costs pressures and declining trade union membership have limited the latter two, leading to increased speculative funding (such as speculative fee arrangements and damages based agreements) to bridge the gap. Plus, a “David and Goliath” relationship between claimants and defenders in personal injury actions means there can be a significant inequality of arms.
As a result, there are concerns over parties not bringing genuine claims because of cost fears and a lack of access to justice for the “excluded middle” (i.e. those who do not qualify for legal aid or have the means to fund litigation privately). To tackle these concerns, the Scottish Government seeks views on primary legislation aimed at:
- increasing access to justice by making the costs of court action more predictable;
- increasing the funding options for pursuers of civil actions;
- introducing a greater level of equality to the funding relationship between claimants and defenders in personal injury actions.
Whether these reforms go far enough and quickly enough is one question, but their principal aims of increasing access to justice and expanding funding options have been addressed. The Consultation is open until 24 April 2015