Access to justice remains a live issue a decade after the Taylor Report - Andrew Lothian

It is now just over ten years since the late Sheriff Principal James Taylor published the Report of the Review of Expenses and Funding of Civil Litigation in Scotland, at the request of the Scottish Government. The Taylor Report, as it became known, was a hugely important milestone in civil litigation in Scotland.

In a recent Scotsman article John Sturrock KC suggested it would be desirable, for a number of very sensible reasons, to remove some disputes from the court altogether. Only a month ago, In these same pages, Bruce Goodbrand drew attention to the relatively high cost of personal injury claims in Scotland. At first glance these might appear to be very different arguments dealing with separate issues, but perhaps there is a connection between them – and therefore a solution to both problems, at least so far as injury claims are concerned.

One of the main themes of the Taylor Report was “access to justice”: in other words, the perceived high cost of litigation in Scotland, when legal aid budgets are always under pressure. The Taylor Report addressed that in a number of ways. First, solicitors would be permitted to enter into a particular type of “no win, no fee” agreements where they are paid by taking a percentage of their client’s damages. Secondly, in personal injury cases, the report recommended the introduction of qualified one way costs shifting (QOCS) which means an unsuccessful pursuer will not be liable for the defender’s legal costs, other than in exceptional circumstances. Both recommendations were enacted in the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, although the relevant provisions on QOCS only came into force in June 2021. As a result, court decisions on the application of QOCS have only recently started to be issued. We are still in the early stages of this new regime, but already we have a clearer picture of when the judiciary is likely to hold that a pursuer's conduct means he is no longer entitled to QOCS protection.

The latest information from the All Scotland Sheriff Personal Injury Court in Edinburgh is that the number of actions raised there has doubled since the court was created eight years ago. That may be taken as a sign of two things: the specialist personal injury court is a success; and there is no obvious problem with access to justice, at least so far as that court is concerned. To that end the Taylor Report can be considered to have achieved its objectives.

​One of the main themes of the 2013 Taylor Report was ‘access to justice’ (Picture: Ian Rutherford)

To address the uncertain cost of litigation, Sheriff Principal Taylor also recommended the introduction of fixed costs for certain categories of work. The report said: "Knowing in advance what their exposure to expenses will be enables parties to make an informed decision about whether or not to litigate. It may also give both parties an incentive for efficiency…. [It] is possible to set rates at a level that offers adequate remuneration for work reasonably undertaken while achieving a degree of certainty and proportionality". Sheriff Principal Taylor excluded personal injury work from that recommendation, on the basis of an "asymmetric relationship" between individual pursuers and insurance company defenders, and the notion that defenders had an interest in prolonging proceedings. QOCS addresses the first of these points. As far as the second is concerned, having been in practice for more than 25 years I have never once had an insurer or defender tell me they would like to "prolong" a case one minute longer than is necessary!

We live in a very different world from 2013. Technological changes, some of which were a response to lockdown, have revolutionised litigation in Scotland, and personal injury litigation in particular. Files are held electronically, not on paper. Documents can be assembled automatically and sent instantly via secure links. Court actions are initiated via email and many court hearings take place virtually. The Scottish Government is currently seeking views on whether to introduce an electronic portal for resolving low value road traffic injury claims. One wonders whether it remains tenable to avoid the conclusion that fixed costs should, by an extension of Sheriff Principal Taylor's logic, now be extended to some personal injury cases.

Andrew Lothian is an insurance partner at global legal business DWF