A SOLICITOR is to lobby the Scottish Parliament to cut the "extortionate and unfair" court expenses private solicitors recover from evicted tenants following unsuccessful defended sheriff court hearings.
Jon Kiddie, principal solicitor at the Paisley Law Centre, is representing a secured housing association tenant taken to court by his landlord after accruing rent arrears valuing 870. The case is being handled by private solicitors.
The sheriff court has ruled in favour of the landlord, despite the man, Kiddie says, having cleared the original debt. A further hearing on 11 July is to be held to seek an order for expenses. Kiddie says this cost will come to 1,800.
"The man has two teenage sons and this bill will trap him in debt for years to come," states Kiddie. "The family may face homelessness. Other Renfrewshire residents are at risk of finding themselves in similar situations."
He suggests that the current case is symptomatic of an unfair and unclear system: "Each housing association will usually instruct a single law firm to handle all its arrears eviction cases.
"Only very large landlord organisations or local authorities will have in-house legal departments. If it were Renfrewshire Council pursuing this case, I would be surprised if they sought more than 100 in expenses. My client is being penalised several-fold simply because he is a housing association tenant not a council tenant. How much is this worth to the private legal profession across Scotland?"
Jennifer Laughland, principal solicitor at Shelter Scotland, backs the call for change. "This is a problem. Even if a case is undefended, a person facing eviction may be charged up to 300 in costs," she says. "The level of expenses can be iniquitous depending on who you rent from, and the limit will vary depending on the court work done."
Laughland adds that the client Kiddie is representing is unusual because most tenants facing eviction represent themselves at court.
"Most people don't have access to a legal aid lawyer because there are so few of them, or because the fees for legal aid are so low. It means that people coming before court are hit by a fair amount of money, as generally it is the pursuer who is awarded the expenses. This adds to debt problems and doesn't help people get out of their difficult financial positions."
However, John Stirling, partner at solicitors Gillespie Macandrew, who has experience of taking eviction hearing cases for housing associations, says the argument against expenses is flawed. "As these are Summary Cause Actions there is control of legal expenses. There is a scale of charges which are very much less than a solicitor's ordinary rate. In this case it would have cost 1,800 if it had been dealt with in-house or through a private solicitor."
Stirling adds that there should be no debate over the level of expenses to be recovered from tenants. "If it is the right amount of money for the work involved, then it comes to what it comes to. If you lose and are sequestrated, which I do not approve of, then that is a question of sequestration not court costs."
Kiddie is undeterred and is petitioning the Scottish Association of Law Centres to lobby the Parliament on this issue. He wants law reform.
"Pre-2002 there was a 50 per cent reduction available for eviction cases where tenants chose not to defend. This was removed in 2002 [by the Act of Sederunt (Fees of Solicitors in the Sheriff Court)]. The Parliament did it, I believe, as to distinguish between tenants who chose to defend and those that chose not to defend could have breached the European Convention on Human Rights and its guarantee for a fair hearing."
Kiddie believes that the Parliament was aiming to make the system fairer, but that "the legislators made a mistake. They have made life harder for people".
The amount of expenses able to be recovered was sharply increased in 2002, Kiddie says, and this is "leading to conflicting decisions made in court regarding levels. People should know where they stand and how much they would be expected to pay. The levels at present are extortionate".
Kiddie would like to see the 50 per cent reduction re-introduced for those facing eviction court proceedings. He is also calling for the Legal Aid (Scotland) Act 1986 to be amended to allow defenders in receipt of Income Support and Jobseeker's Allowance to apply to court to have expenses waived without being required to apply for legal aid. And he wants to remove the provision from the Legal Aid (Scotland) regulations allowing pursuers to recover expenses up to the date on the defender's legal aid certificate.
At present a defender with a legal aid certificate can apply to the court to restrict the expenses or to waive them altogether. Kiddie's client is entitled to legal aid and has a legal aid certificate but "it took the Legal Aid Board until the end of the case to process his application. His landlord's solicitors are arguing it is not effective because the regulations say legal aid is not retrospective".
Laughland adds: "No-one is suggesting that solicitors shouldn't claim for costs but in certain circumstances there should be a cap on expenses."
A Scottish Court Service spokesperson explains that the level of expenses that a successful party may seek from an unsuccessful party in civil litigation in the sheriff court is regulated by the Table of Fees. It sets out maximum sums recoverable for various types of work undertaken. This is set annually by the Lords of Council and Session and is subject to Parliament scrutiny.
"Before the Table is agreed it is open to members of the profession to make representations to the Court of Session," the spokesperson adds. "The maximum limits set out in the Table provide some certainty for unsuccessful parties. The final amount of expenses that can be recovered is subject to the general discretion of the auditor of court."