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Civil Litigation Bill may fall short of aims, Faculty warns

16 August 2017

The Holyrood bill aimed at making litigation more affordable to ordinary people needs amending in order to achieve its goals, the Faculty of Advocates claimed today.

In its written evidence to the Scottish Parliament’s Justice Committee, which is examining the Scottish Government's Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill at stage 1, Faculty says it supports the bill's aim of improving access to justice through a more accessible, affordable and equitable civil justice system.

However, it raises concerns in relation to particular provisions of the bill, including those relating to speculative fee agreements (no win, no fee) and damages based agreements or DBAs (the fee calculated as a percentage of any damages won).

One issue highlighted is section 5, which prohibits both these types of success fee arrangements in family proceedings. While supporting this position as regards DBAs, Faculty points out that speculative fee arrangements are currently permitted in family proceedings, and while only used in a small number of cases with very particular circumstances, they can be used to good effect, and enable parties to obtain specialist representation where they might not otherwise be able to. The Taylor report, on which the bill is based, did not propose any change in this respect.

The submission also argues for a procedure to enable an equitable identification of the judicial expenses element of a global settlement, in order that the success fee can be calculated. In the absence of a particular mechanism being included in the bill, there should be a clear indication of how one will be provided.

With regard to the contentious question of the extent to which an award for future loss should be included in the calculation of a success fee, Faculty suggests that "a tapered percentage limit on the total capitalised value of the claim would be the simplest, most straightforward and most workable solution".

Also in relation to DBAs, Faculty maintains that there is a public interest in the proper regulation of such agreements. It repeats its concerns that the Government is not proposing to regulate claims management companies which DBAs could attract to the Scottish market.

On the proposed introduction of qualified one-way cost shifting, which would mean successful defenders not being able to recover their costs in most cases, Faculty renews its position that this should only apply to claims against public bodies and insured defenders, to prevent uninsured defenders or those of limited means "being held to ransom if they have no prospect of recovering the cost of a successful defence". It also believes the current drafting of the exceptions to the rule could be improved.

Click here to access the full submission, and earlier responses adopted in the paper.

 

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