Faculty of Advocates against plan to make litigants pay full court costs

Plans by the Scottish Government to make litigants fund the civil justice system through court fees have been strongly opposed by the Faculty of Advocates.

“The civil justice system should be funded by the state from general taxation…(it) is a cornerstone of a democratic state…(and) is vital to every citizen, whether or not he or she ever becomes a litigant,” said the Faculty.

Citing state-provided services such as medical care and the police, the Faculty added that it considered access to the courts to be of equal importance.

“No part of our democratic society could function without our civil law being maintained by the operation of our courts. There is no warrant to shift the cost of the courts entirely on to litigants when the whole of society benefits from them,” it stated.

In July, the Scottish Government issued a consultation on increasing court fees, aimed at achieving “full cost recovery.”

Two possible approaches were put forward - increasing all fees by 24 per cent, and increasing fees for only some actions while leaving others untouched.

In its response, the Faculty re-iterated the view it expressed in 2008, 2010 and 2013 to previous consultations on the issue.

“As a matter of principle, the civil justice system should be funded by the state, not litigants,” it said.

“The civil justice system is a cornerstone of a democratic state. It is the duty of the state to provide an accessible civil justice system…To the benefit of society at large, the law is made, declared or clarified daily by the civil courts. The civil justice system is vital to every citizen, whether or not he or she ever becomes a litigant. The benefits to society justify it being funded in full from general taxation.

“Many state-provided services are funded from general revenue, on the basis that these services benefit the whole of society, and not just those in immediate need of them. Our society accepts that, without regard to their means to pay, individuals should have access to medical care, and that every sort of person should be served by the police and emergency services.

“The Scottish Government has recognised that charging tuition fees to students limits access to higher education for many and that charging for prescriptions might deter people from seeking medical assistance. The Faculty considers that access to the courts is of equal importance.”

The Faculty believed that the proposed increases would be likely to impede access to justice, and that requiring a person to pay expensive court fees could be a breach of Article 6 of the European Convention on Human Rights, which protects access to a court.

“The funding of the civil justice system by litigants rather than the state does not protect access to justice, it hinders it.

“If even a few people are deterred from litigating a good claim or defence, that is seriously damaging justice. There may be many more than a few who are so deterred, of course,” said the Faculty.

“The system of court fees exemptions is inadequate to protect access to justice…the thresholds for exemptions are set very low.”