Ministers consult on enacting Taylor report

Proposals for legislation to enact Sheriff Principal's Taylor's recommendations on the funding of civil court cases in Scotland have been put out for consultation today by ministers.

Following the Taylor report, the plans include:

• caps on speculative fee agreements – "no win, no fee" agreements but with an additional "success fee" payable – to prevent market forces alone deciding what percentage can be taken from an award of damages;
• allowing damages based agreements, under which the solicitor's fee is calculated as a percentage of the sum awarded, subject to similar caps;
• the same rules to apply to claims management companies, though no further regulation of these companies is proposed for the time being;
• no ring-fencing of future loss from the success fee;
• a non-statutory code of conduct to be developed, applying to all persons and businesses offering damages based agreements;
• the introduction of qualified one-way costs shifting, providing a degree of protection to pursuers against being found liable for defenders' costs, in personal injury cases and appeals, including clinical negligence;
• a table of counsel's fees that can be recoverable as expenses, to apply also to solicitor advocates;
• new powers for the Scottish Civil Justice Council to allow the courts to take forward proposals including in relation to disclosing a party's sources of litigation funding.

Further questions cover sections of Lord Gill's civil courts review that have not yet been addressed, on multi-party actions; the arrangements for taxing awards of expenses; and a statutory provision to cover making legal representatives personally liable for an award of expenses where needless cost has been caused.

It is also proposed to make legal aid available, in certain circumstances, to legal as opposed to natural persons; and to ensure that the Scottish Legal Aid Board has the power to ensure that it can assess the availability of other funding mechanisms for civil litigation when considering an application for civil legal aid, so that it is only a funder of last resort.

Launching the paper, Minister for Community Safety and Legal Affairs Paul Wheelhouse said: “The role which expenses play in the context of civil litigation cannot be underestimated. As Sheriff Principal Taylor set out in his review, the current unpredictability of the costs of civil litigation impacts on access to justice.

“The Scottish Government agrees that the current situation where the unpredictability of costs represents a barrier to justice is not acceptable. I am convinced that the proposals in our consultation will go a long way to making the Scottish civil litigation system much more accessible to the people of Scotland.

“Indeed, these improvements are the final part of a much wider series of reforms to our justice system which are designed to make it more effective and efficient for all parties involved, and ensure that disputes are resolved fairly and swiftly."

Click here to view the consultation. The deadline for responses is 24 April 2015.