The 'Taylor Review' has published its Report which makes 85 recommendations for extensive changes to the system of costs and funding of civil litigation in Scotland.

The Remit

The Report of the Scottish Civil Courts Review (‘SCCR’) recommended that a review be conducted into the costs and funding of civil litigation in Scotland. In March 2011, the Scottish Government commissioned the Review of Expenses and Funding of Civil Litigation in Scotland under the Chairmanship of Sheriff Principal James Taylor to consider these issues in the context of the recommendations of the SCCR, and the Scottish Government’s response to those recommendations.

The Recommendations

The Report’s key recommendations include:

  • Recovery of Judicial Expenses and Predictability: Recommendations to improve access to justice, enhance the ability of solicitors to advise their clients on the recoverability of, or liability for, the expenses of a court action, and reduce the discrepancy between the cost of a commercial action and the amount of expenses which may be recovered. The Report also recommends that the Scottish Civil Justice Council establish a sub-committee to examine the level of litigation fees that may be recovered.
  • Expenses Management: A pilot scheme introducing judicial management of expenses, based on budgeting, from the outset of a commercial action.
  • Summary Assessment of Expenses: A pilot scheme for the summary assessment of expenses in commercial actions.
  • Interest on Judicial Expenses: Enabling the court to award interest on judicial expenses from 28 days after the award of expenses.
  • Fixed Expenses: Fixed expenses for actions, other than personal injury actions, raised under the simplified procedure recommended by the SCCR. 
  • Counsel’s and Experts’ Fees: Rationalising the use of counsel and experts to reduce the cost of litigation.
  • Protective Expenses Orders: The ability to apply for a protective expenses order in all public interest litigations. 
  • Qualified One Way Costs Shifting (QOCS): The introduction of QOCS in personal injury actions to protect pursuers from adverse awards of expenses should they be unsuccessful. The benefit of QOCS should be lost if the court finds the pursuer to have acted fraudulently, committed an abuse of process, conducted the litigation unreasonably, or the action is dismissed summarily. 
  • Damages Based Agreements: Agreements where solicitors fees are taken as a percentage of the damages awarded should be enforceable in Scotland. The percentage that can be deducted should be capped on a sliding scale based on the amount of the award, ranging from 20% to 2.5%.

Comment

The recommendations have been made with the presumption that the recommendations of the SCCR are implemented in full. As such, it is now for the Scottish Government to consider how to implement the recommendations in that context.