Access to justice: the small print

On any view, the recently published bill will bring some dramatic changes in terms of how civil litigation generally, and personal injury claims particularly, will be litigated in Scotland in future. Practitioners need to be aware of the likely consequences for them and do all they can to influence the shaping of the rules during the legislative process now underway.

Sheriff Principal Taylor’s 2013 review is the basis for many of the proposed changes, underpinned by an understandable goal of increasing access to justice. To do that, the bill aims to create a system which those involved in litigation, or considering it, find easier to access, more affordable and generally fairer against a background of suggestions that claimants still face a “David v Goliath” scenario.

While others can comment generally on the bill and the technical issues it throws up, from the point of view of the Professional Practice team a few issues jump out.

DBAs: settling terms

First of all, a major change will allow solicitors to get a fee calculated as a percentage of either the award by the court or the amount agreed to be paid to their client under an extrajudicial settlement (a damages-based agreement or DBA). For litigators who have spent a career rightly thinking that was not allowed, it will be a significant change, but with ways round the current rule already being used by firms, formalising the change reflects the reality of practice and makes it easier for all members, whatever size their firm or however few claims they manage, to get involved.

While it will avoid clients having to sign two sets of terms (one with their law firm and one with a funder), one of the ironies and concerns over the introduction of DBAs is about what they actually contain. Each firm will be able to draft its own agreement for clients, but a valid concern has been raised about what a DBA will provide for and who will decide whether it is fair and should
be signed.

Hopefully common sense will prevail and good practice will ensure it does not happen, but it is not difficult to imagine a scenario where a claimant is faced with signing an eight-page DBA at the outset and is not sure whether this is a good idea. Any firm in that situation arguably faces a conflict, as their own interests (as well as their client’s) have to be protected. It would be unfortunate if we come to the situation where such a client ends up going to an independent firm asking for advice.

QOCS complications

Adding to this difficulty, it is not clear yet whether references to “funders with a financial interest” in terms of QOCS will include solicitors whose clients will be able to enter into DBAs. Given that QOCS will mean claimants getting expenses if successful but not paying expenses if not (subject to exceptions), it would be a missed opportunity if the end result is that practice stays the same because solicitors are treated as funders and the potential benefit to claimants is lost.

Flowing from that, one of the exceptions to the normal QOCS rule is that the protection for claimants might be removed if that party “behaves in a manner which the court considers falls below the standards to be reasonably expected of a party in civil proceedings”. For the sake of practitioners, it is very important that this is defined accurately so that members know what is likely to be included. Concern has to be expressed that this seems a much lower bar to measure against than other exceptions set out (making a fraudulent representation, or abuse of process), which are altogether more serious in nature. On a very practical level, it seems fair to point out that the test proposed is also particularly subjective and it would be unfortunate if solicitors (and their clients) suffer as a result.

The Society’s Civil Justice Committee is currently working on a response to the bill on behalf of members; the deadline for submissions to Holyrood’s Justice Committee is 18 August 2017. While this article has focused on professional practice issues, views from members on the impact and consequences of the proposed changes more generally will be invaluable for preparing that response. Anyone interested is encouraged either to make a submission directly or to pass those on for inclusion in the combined Society response. Please send any submissions to Russell Eadie, secretary to the Civil Justice Committee or call 0131 226 8893 to discuss any of the issues if that is helpful.