Faculty adds voice to court fees opposition
The Faculty of Advocates has reiterated its opposition to any rise in civil court fees, in its response to the Scottish Government consultation.
With ministers proposing a 2% rise from 1 April 2022, followed by similar rises in the next two financial years, Faculty believes that fees are already "excessively high" and should not be increased: as a matter of principle the civil justice system should be funded by the state and not by litigants.
Commenting on a question regarding the fee exemptions system as it pertains specifically to access to justice for disabled litigants, Faculty notes that this issue underscores the problem inherent in the present system: that there are many people who cannot afford to go to court.
"The Faculty considers that unrepresented litigants are at a substantial disadvantage compared to represented ones", the response states. "Those who cannot afford to pay for representation are best served by legal aid. Those who cannot obtain legal aid are best served by pro bono, speculative or third party-funded legal representation. All these groups are materially disadvantaged by the current levels of fees. The current fee exemption scheme does not help them.
"The Faculty considers that fee exemptions should not encourage parties to litigate in person. Rather, they should support those who have legal assistance pro bono."
Faculty further believes that environmental cases within the meaning of the Aarhus Convention should be exempt from court fees. In reply to a question on this point it states: "Environmental cases are one example of litigation in which individuals and groups seek to have the courts hold the executive to account in the public interest. While this is understandably regarded as an inconvenience, it is an important feature of a democratic society. Public interest is present in many challenges to government decisions. Even where a challenge to a government decision does not have a wider public interest, there is such an interest in the state being held in check and restrained from arbitrary exercise of power.
"Most, but not all such litigation is by way of judicial review. The Faculty would support an exemption for fees for lodging petitions for judicial review and reclaiming from refusal of such petitions. Failing such a blanket exemption, the Faculty favours including fee exemptions in the decision-making process of protective expenses orders.”