The potential costs involved can deter many people from pursuing legal action in a civil court, even where they have a justified claim.
The fear of having to pay their own solicitor and also the legal costs of their opponents can be a significant deterrent. This potential liability can cause people not to exercise their legal rights and ultimately their right to go to court.
That’s why being able to predict the cost of resolving disputes is, understandably, a key issue.
For some time there has been discussion of how the current position, where in many cases a successful party will receive back no more than two-thirds of its costs outlays, should be reformed.
The recently published Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill that sets out the Scottish Government’s proposals to change the way civil litigation is funded, is therefore a welcome development. It follows on from Sheriff Principal Taylor’s Review of Expenses and Funding of Civil Litigation in Scotland in 2013.
The principal policy behind the Bill is to “increase access to justice by creating a more accessible, affordable and equitable civil justice system”. The Bill seeks to make the costs of civil actions more predictable and expand on the funding options available to pursuers.
The Bill introduces a sliding cap to make legal fees in such cases clearer and protect people from a large expenses bill if they do not win personal injury claims. It will also allow solicitors, as well as claims management companies, to offer ‘no win, no fee’ agreements as well as enabling groups of people to sue in the civil courts, where they have the same or a similar claim against the same defender or defenders.
Currently under Scots law such cases have to be pursued separately.
The Bill provides for the setting of a straightforward formula in personal injury and other civil cases to enable a client to work out what his or her lawyers can charge if a ‘success fee’ arrangement is entered into.
It also proposes removal of the pursuer’s risk of having to pay an opponent’s costs in unsuccessful personal injury cases, provided they have acted properly. The Bill is currently in its infancy within the Parliamentary process and it is likely to be given close scrutiny by Holyrood given the potential significance of its changes.
It has been assigned to the Justice Committee of the Scottish Parliament and it is unsurprising that the Committee has issued a call for evidence on its impact, with a deadline of 18 August, which allows pursuers, defenders and their solicitors to have their say before the new parliamentary session.
It is clear that this Bill has the potential to radically change the landscape of civil litigation funding in Scotland. Key stakeholders will be keen to have their say.
James McGachie is legal director within DLA Piper’s litigation and regulatory practice, based in the firm’s Edinburgh office.