Scottish court fees 2018-2021: consultation

Section 2: Fee proposals

26. Except as referenced in this section, the Scottish Government proposes that fees narratives should remain as they are set out in the Adults with Incapacity (Public Guardian’s Fees) (Scotland) Regulations 2015 and the Court Fees (Miscellaneous Amendments) (Scotland) Order 2016 respectively.

Adjusting for Inflation

27. The Scottish Government considers that underpinning the fee proposals should be an increase to fee levels of 2.3% with effect from 1 April 2018 to reflect inflationary pressures. This would be followed by further increases of 2% with effect from 1 April 2019 and 1 April 2020.

28. In general this should be achieved by raising each individual fee point by 2.3%, 2% and then 2% again. The arithmetical outcomes for individual fee points will be rounded up or down to the nearest pound, where appropriate. Those proposed inflation adjustments are based on the forecasts issued by the Office of Budget Responsibility in March 2017 (table 1.1).

29. A different approach for some specific fees is justified, as discussed above, by a rationale for greater consistency or to drive improved efficiency within the courts system.

Fee Proposals for Courts

30. Specific proposed departures from the flat rises are:

Hearing Fees

31. The fee narratives for hearing fees in the Court of Session (at line items B16, B18, C12 and C14) currently read as covering a hearing “before a single judge” but that leaves what happens when the court sits with two judges open to conjecture and misinterpretation. To provide greater clarity on the policy intent we think that issue should be put beyond doubt by ensuring court users understand this fee is intended to cover a bench of either one or two judges.

32. The Scottish Government proposes that:

The fee narratives are changed: from “before a single judge” to read “before a bench of one or two judges

Caveats

33. A caveat is a legal document lodged in court by a party so that no order or ruling affecting them passes in their absence or without receiving prior notice and an opportunity to be heard by the court before any order is made. The fee within the Sheriff Court is £36 and in the Court of Session it is £48. As part of the digitisation of services within ICMS there is a shift to adopting a more generic process for managing caveats within the courts and there appears little justification for continuing with a differentiated fee.

34. We propose to align the fee within the two courts (line item C6 in the Court of Session and line 20 in the Sheriff Court) and set the fee level at £43 subject to the outcome of consultation (including inflation adjustment proposed by the consultation).

Sheriff Appeal Court Hearing Fees

35. Following practice in the Court of Session, the Sheriff Appeal Court currently allows for a fee not to be applied for the first thirty minutes of a hearing. Now that the Court has been operational for two years it has been identified that working practices within the two courts are fundamentally different and the practice of not charging for the first thirty minutes has given rise to the unintended consequence of substantive hearings not being chargeable. Whilst a short period without a fee is justifiable in the Court of Session in order to encourage procedural hearings at the start of the day not to overrun and displace other scheduled business, it was never the intention that substantive business should be conducted without a fee.

36. The Scottish Government therefore proposes that the exemption from fees (line item 4) for the first 30 minutes of the hearing in the Sheriff Appeal Court should be removed. This means that a daily fee of £227 or £568 would be applicable from the start of the hearing, for a bench of one or three respectively.

Sheriff Appeal Court Permission Fees

37. A further proposal in relation to hearing fees in the Sheriff Appeal Court relates to the introduction of permission to appeal fee - the permission stage. The Sheriff Appeal Court hears civil appeals against decisions of the sheriff courts, including the Sheriff Personal Injury Court – permission is not required for first appeals of this nature. Where a party wishes to further appeal to the Inner House of the Court of Session, having already had their case heard before both the sheriff and the Sheriff Appeal Court, this is exceptional and the appeal must satisfy the strict “second appeals test” in section 113 of the Courts Reform (Scotland) Act 2014 ¹.

38. It has been suggested to the Scottish Government that it would be appropriate to have a fee for the permission stage – i.e. a fee payable when an application to the Sheriff Appeal Court for permission to appeal further to the Inner House has been lodged. It was noted that there were many applications for permission and it could be difficult to reconstitute the bench which had heard the original appeal given the diverse location of appeal sheriffs. Many litigants appealed, however, permission had been granted in only 2 cases. This implied that permission was being sought, more often than not, for unmeritorious appeals, and that the imposition of a fee might modify that behaviour. Clearly where the litigant concerned had the benefit of a fee exemption, then charging a permissions fee would have no effect, but it is considered it is important to seek to modify behaviours in those cases where that can be done.

39. The Scottish Government proposes that a new fee of £246 (including inflation adjustment proposed by the consultation) for permission to appeal should be introduced so that unmeritorious appeals should be discouraged, to allow the Sheriff Appeal Court more time to deal with meritorious permission applications i.e. appeals where there is an important point of principle or practice or some other compelling reason for the Court of Session to hear the appeal.

Bankruptcy (Composition Fee)

40. Applications to a Sheriff arose under the Bankruptcy (Scotland) Act 1985 which has now been repealed. Other than potentially for a tiny minority of cases which possibly continue to operate under the old regime because the discharge of bankruptcy has been delayed, the composition fee is redundant. The Scottish Government proposes that the fee (line item 13) be removed.

Election Court

41. The Election Court sat for the first time in two decades during 2016. No fees could be charged for any of the motions that were lodged or for the hearing itself when it proceeded as they are not separately specified under the cross heading for the Election Court in the Court of Session etc. Fees Order 2015.

42. The Scottish Government propose that:

A new line item to cover motion fees of £102 (subject to the result of the consultation) is added to section E of the Court of Session fees table.

A new line item to cover hearing fees of £204 (subject to the result of the consultation) is added to section E of the Court of Session fees table.

Scottish Land Court Fees

43. The Scottish Land Court has operated as a stand-alone body since it was established and has only recently been brought within SCTS by virtue of the Judiciary and Courts (Scotland) Act 2008 (Scottish Land Court) Order 2017. The time therefore seems right to look closely at the fee charging arrangements, as the fees charged within that Court have remained unchanged since 1996 (the Scottish Land Court (Fees) Order 1996). That said, there are other pieces of work underway that effect the work of the Land Court such as the consultation on crofting law that is currently on-going http://www.gov.scot/publications/crofting-consultation-2017//downloads#res523679.

44. The Scottish Government therefore does not propose changes to fees in the Land Court in this consultation but will continue to monitor the situation with a view to possible action in the future.

Fee proposals for the Office of the Public Guardian

45. Specific departures from the flat rises are:

Audit of Accounts – Office of Public Guardian ( OPG)

46. With guardianships there is a need to avoid taking a “one size fits all” approach and, to comply with the United Nations Convention on the Rights of Persons with Disabilities, the OPG need to demonstrate a tailored approach to the safeguarding measures they take in Scotland. As part of that supervisory role the burden of reporting has been reviewed and a more flexible procedure is being implemented. That operational change would be assisted if line item 19 (Audit of Accounts) was now split into two component parts: a first review, and an intermediate review.

47. The Scottish Government proposes:

in the existing line 19 the words Audit (except Final Audit) should be replaced with the words First Review

a new line should then be inserted that reads

a. Intermediate Review – in accordance with paragraph 7 of schedule 2 to the Act –

i. Where the Public Guardian has specified limited supervision - £80 (including inflation adjustment proposed by the consultation)

ii. Where the Public Guardian has requested formal accounting then the fees as specified for a first review will apply (refer 19)

Office of Public Guardian Fee Narratives

48. In addition to changes to the fee levels there are proposed changes to the terminology within the fee table for the OPG to improve clarity.

Initiation fees in the OPG

49. In relation to these fees (at line item 1) we propose to refer to “processing” rather than “submission” to remove operational confusion about whether the fee is payable on lodging or after a subsequent decision has been made.

The revised fee line would therefore be ‘Processing of a document conferring a continuing and / or welfare power of attorney under section 19 of the Act’ (the Act being the Adults with Incapacity (Scotland) Act 2000).