Andrew Stevenson: Since taxpayers benefit, they should fund our civil court system

In recent years governments have shown an unfortunate propensity to treat some of the mechanisms of our legal system as opportunities to make money from those compelled to use them. Just as a house buyer must pay Registers of Scotland and an executor requires to meet confirmation dues, so litigants must pay the clerk of court in order to access that process. Many feel a sense of having been wronged even before they reach court, only then to bear what may well feel like a stealth tax on their misfortune.

Andrew Stevenson is a Council Member, Scottish Law Agent

Sheriff court fees are due to increase by 2 per cent on 1 April. This follows a 2 per cent increase last year preceded by 2.3 per cent the year before. Inflation linked annual rises in court fees may seem innocuous. But they are a manifestation of a misconceived policy adopted by the Scottish Government, namely that of achieving “full cost recovery” in the civil courts. In its note to its key Sheriff Court Fees Order of 2008, the government said its “long-standing position on court fees is that where a dispute is between two private individuals, the majority of the benefits of resolving that dispute are expected to flow to the parties rather than the state. Therefore, it is unreasonable to ask taxpayers to pay for this.”

This daft Order has been the source of major increases. The note advocated an approach whereby “Fees should generally be set at levels that reflect, on average, the full cost of the processes involved”.

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It stated that in 2008 fees represented 67 per cent of the cost of administering civil business in the sheriff courts. By 2013/14, 80 per cent of such court costs were being so met and a 2016 Order was intended to achieve 100 per cent recovery. Now, full cost recovery is being maintained by ongoing inflationary increases.

Together with the other costs of running a case, these fees may present a considerable burden of outlays to those on average incomes. For example, at the beginning of 2018 a sheriff court Ordinary Cause which proceeded to a two-day proof cost a pursuer £741 in court fees. After 1 April 2020 this figure will rise to £788. By contrast, when I began conducting proofs in 1992, unless the case proceeded to a taxation of expenses, the only court fee payable by a litigant was £26.

Not only can fees present a barrier to access to justice (as the disastrous employment tribunal fees regime demonstrated), the Scottish Government appears to disregard the fact that the principle behind its policy of “full cost recovery” was discredited in 2017 by the UK Supreme Court. Furthermore, the Justice whose opinion is most outstanding is that of Lord Reed, a Scottish judge, the finest of legal minds and, as of January 2020, President of that court.

In UNISON v Lord Chancellor [2017] UKSC 51 his Lordship analysed with remarkable skill and perception the right of access to the courts and of the rule of law, stating that it is wrong to assume: 
“that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the ‘users’ who appear before them, and that the provision of those services is of value only to the users themselves… Courts exist in order to ensure that the laws are applied and enforced. In order for the courts to perform that role, people must in principle have unimpeded access to them… That is why the courts do not merely provide a public service like any other. Access to the courts is not, therefore, of value only to the particular individuals involved.” Also: 
“People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations there is likely to be a remedy against them. It is that knowledge which underpins everyday economic and social relations.” [p1060]

Full cost recovery in the civil courts is therefore a rationale based on a mistaken view of the role of the civil courts. Litigation is not arbitration. The Government ought to have abandoned its “long-standing position” and should stop increasing court fees. In light of the UNISON case, taxpayers should be asked and expected to fund our civil court system. They all benefit from it.

Andrew Stevenson becomes 
Secretary of the Scottish Law Agents Society this month