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More submissions to Taylor review released

22 March 2012

Two more submissions to the Taylor review of civil litigation funding in Scotland have been published, both from those with interests in insurance related work.

The Forum of Insurance Lawyers (FOIL) believes the Scottish system of expenses requires a less radical revision than that of England & Wales. Scotland, it says, has not experienced the problems which have arisen from referral fees, success fees, ATE insurance and satellite costs litigation. FOIL believes therefore that there are dangers in seeking to address such issues as may validly arise by applying the solutions arrived at in England & Wales.

FOIL states that any system which exposes the opponent to a risk of an award of costs should do so in a way that is proportionate to the level of litigation, is predictable, certain and transparent, and facilitates access to justice.

In many respects, it maintains, the existing Scottish system, based as it is on the use of tables of fees prescribed by the courts, works well and meets the certainty, predictability and transparency criteria. Such criticisms as there may be as to proportionality would be addressed by adopting the financial thresholds of the courts and the codes of procedure addressed by Lord Gill’s recommendations, which would be an essential part of the process of reform.

David Taylor, FOIL’s Scottish executive representative, commented: “A litigant ought to have a proportionate financial stake in his litigation and share the risks. Many of the problems which have arisen in England & Wales are precisely due to the disconnection from the risks and expenses of the process caused by the widespread actions of claims management companies.”

“We believe that the current voluntary protocols in, for example, personal injury cases ought to be compulsory so that any revised costs/expenses regime operates in a seamless manner having regard to the pre litigation period. Only then, and when furnished with appropriate tables of fees and with a discretion to vary or depart or enhance the recovery allowed in more clearly defined circumstances, will justice be done. We believe that henceforth all rules of Court should incorporate a general case management principle to the effect that it is the duty of the court to ensure the expeditious disposal of the case at proportionate cost, having regard to the issues or sums at stake.”

Model

Legal firm HBM Sayers, meantime, has put forward what it describes as "a coherent model for the calculation of judicial expenses in the types of cases that we deal with, i.e. personal injury and property damages claims".

This, it says, should be based on the principles that: judicial expenses should be predictable and proportionate to the value of the claim; they should be based primarily, but not exclusively, on solicitors' hours spent doing the work; the system should operate, so far as possible, to allow all parties access to justice; in general, expenses should follow success; and the successful party should be entitled to recover the majority of expenses necessarily and reasonably incurred.

The firm then puts forward a model for calculating judicial expenses in personal injury and property damage cases, including for the former category fixed fees in cases worth £25,000 or under, and fixed fees or stage payments for values between £25,000 and £50,000, and otherwise block fees but with revisions to the way in which an additional fee is applied for, to provide an option to seek a fixed fee from the outset. This could be on the lines of the system in the Birmingham Mercantile Court, somethng not supported by either the Faculty of Advocates or the Law Society of Scotland in their own responses to the review (click here for report).

 

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