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Judges welcome Civil Litigation Costs Bill, subject to comments

17 August 2017

Court of Session judges have welcomed the bill designed to reduce the financial barriers to litigating in Scotland's courts, subject to comments in two areas.

In a written submission to the call for evidence by Holyrood's Justice Committee, the judges say they "broadly welcome the provisions of [the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill] which will give effect to key recommendations of the Taylor report and to a number of the outstanding recommendations of the Gill review". They make no comment on the proposals regarding success fee arrangements and qualified one-way cost shifting, aspects of which were criticised yesterday by the Faculty of Advocates (click here for report), but focus on the provisions for group proceedings, and how to pay the Auditor of the Court of Session, who is responsible for deciding what litigation expenses are properly charged to the losing party.

On the latter point, the judges consider that the auditor should not be a salaried employee of the Scottish Court & Tribunals Service, as they would be vulnerable to criticism "if, for example, he or she required to deal with taxations in litigation involving his or her employer or the Scottish Government". Instead, "a mechanism could be found to retain the present system of tenure of the office but payment of a salary in the same manner as judges. This would be a return to the position prior to 1998 when we understand the current system of remuneration was introduced".

As for group proceedings, the judges welcome their proposed introduction but warn that there needs to be clarity over the liability of the various members of the group to contribute towards the cost and any liability to the other side. "Any uncertainty or ambiguity regarding these matters has the potential to lead to disputes, and to discourage individuals and organisations from offering themselves up as a representative party", the response states. This includes people joining the litigation after the permission stage, "an area where further provision may be required".

It is also important, the paper continues, that the procedure should be "desgned to facilitate settlement". Court rules will have to be devised to determine whether court authority should be sought to adandon or compromise a claim. The bill should also allow various settlement models to be implemented, such as flat rate or agreed percentage of full liability.

However there are limits to these, and "it is conceivable that the only offer, or the best available offer, will be an offer of a global sum in full and final settlement of all claims. The effect of settling on those terms would be to leave the representative party holding an unallocated fund. It is our view that settlement on that basis would only be possible, either if all the represented claimants agreed on a scheme of division of the fund, or if the appropriate division of the fund was one that could be determined by the application of a relevant body of law". It is not something, the judges advise, that should be left to the discretion of the representative party or of the court.

They conclude: "Beyond the issues raised above, it is difficult at this stage to assess if the bill, as introduced, makes all necessary legislative provision for the establishment of a fully effective group procedure. This may only become apparent once the Scottish Civil Justice Council embarks on the significant task of designing a procedural model and developing detailed court rules. However, it is possible to envisage circumstances in which further legislative provision may be required" – one such example being rules of limitation.

Click here to view the full submission.

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