Bill introduced to take forward Taylor report proposals
Radical changes to the rules regarding funding of civil litigation in Scotland, and liability for the costs of going to court, are contained in a Scottish Government bill just introduced to the Holyrood Parliament.
The Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill follows many of the recommendations in the 2013 report by Sheriff Principal James Taylor into his Review of Expenses and Funding of Civil Litigation in Scotland. These include allowing agreements under which the solicitor will receive a percentage of a financial award by a court as a success fee, restricted liability of claimants in personal injuries actions if their claim fails, and regulation of third party funding of legal actions.
About half of Sheriff Principal Taylor's recommendations do not require primary legislation and are being implemented mainly by rules of court. His recommendations regarding sanction for counsel were provided for in the Courts Reform (Scotland) Act 2014, s 108. Most of the other recommendations will be implemented through this bill. The main exceptions are regulation of the claims management industry, and referral fees, which will be considered in the recently announced review of legal services.
At present it is illegal for a solicitor to have an interest in litigation to the extent of being able to claim a share of any award, but the Taylor report noted that the rule was easily circumvented by setting up separate companies and concluded it served no useful purpose. A successful solicitor will still be able to recover and retain expenses from the losing party in cases covered by a success fee agreement, unless the agreement provides otherwise. Ministers will have power to cap success fees by regulations.
In personal injury cases where a success fee agreement is in place, claimants must not be liable to make any payment other than the success fee.
Separately in personal injury claims, no award is to be made against a losing claimant unless that person makes a fraudulent representation in connection with the proceedings, behaves in a manner which the court considers falls below the standards reasonably expected of a party in civil proceedings, or otherwise conducts the proceedings in a manner that the court considers amounts to an abuse of process. The rationale for this is to remove the fear of individual pursuers having to pay a lot of money to the defender’s solicitors should they lose, which can result in good claims not being pursued.
The bill also makes provision for pro bono funded litigation, for legal representatives to bear the cost where their conduct in a civil action has caused needless cost, and for the introduction of a group procedure in Scotland.
It will further enable the Auditor of the Court of Session, the auditor of the Sheriff Appeal Court and sheriff court auditors to become salaried posts within the Scottish Courts and Tribunal Service.