The overarching aim of the Review is to ensure that the civil courts provide the public with a high quality system of civil justice. In previous e-updates, we have seen how proposals relating to case allocation to the appropriate court/judge, case management procedures and IT systems are hoped will offer a clearer, more efficient path to the fair and just resolution of disputes. Today's e-update looks at recommendations minded to achieve this end through curtailing unnecessary litigation processes and improving the recovery of expenses system.
Alternative Dispute Resolution
Whilst access to the courts is a necessary requirement in certain cases, in many, a negotiated settlement will be the fairest, quickest and ultimately most desirable outcome for the parties concerned. The Review considers mediation and other forms of ADR as supplementary to the role of the court. Recommendations in this area are two-fold. Firstly, to implement measures promoting the availability of alternatives to litigation to the public and secondly, to develop resources within the Scottish court system in support of diversion or referral of appropriate cases towards alternative resolution methods. Proposals include:
- A free mediation service for lower value (under £5000) cases similar to that already provided in England and Wales.
- A telephone helpline to provide information about mediation and providers of mediation facilities.
The review makes two recommendations for facilitating the early resolution of claims without impeding access to justice.
Firstly, pre-action protocols should be compulsory for all types of personal injury actions. This enforces existing principles of good practice, encouraging openness and cooperation between parties through the exchange of relevant information prior to litigation commencing. Where a party does not comply with the service of productions, the court has discretion to make expenses awards against them.
Secondly, there should be a new and improved system for making formal offers to settle a case, replacing the current system of judicial tenders. The proposal suggests that it should be open to either party to make a monetary or nonmonetary offer to the other side in full or partial settlement of the case, including prior to commencement of proceedings. At present, there is no formal provision in the court rules for "pursuer's offers", but the proposal would alter that. The court would have enhanced discretion as to how expenses are awarded, following a scale related to the favourability of the offer compared to the outcome.
The express intention of the Review's recommendation in relation to expenses is to increase access to justice. Notably, proposals are aimed at reducing the cost of litigation and enhancing the clarity and consistency of expense recovery and accounting for costs. Recommendations include, but are not limited to:
- An increase in the 'block-fees' set by the court tables of recoverable expenses for pre-litigation work done by solicitors. The aim is to promote careful and reasonable case preparation and encourage early settlement. Proof preparation block fees would also be increased.
- Introduction of a judicial table of fees for Counsel, to regulate the expense of instructing Counsel, with rates based on categories of work, complexity of the case and seniority/expertise of Counsel. The court would also have the power to award interest at the judicial rate (8%) on outlays from the date they were incurred.
- Improving the auditing mechanisms of the court to make taxing of accounts less complex and more consistent. This would include making the Auditor of the Court of Session and the sheriff court auditors salaried public appointments subject to public scrutiny.
- The Scottish Government exploring with insurance providers the scope for improving public awareness of the benefits of legal expenses insurance ("before the event" insurance) leading to increased voluntary uptake of legal expenses insurance. This would help address the "middle income trap".