Scottish court fees 2022 to 2025: consultation analysis and Scottish Government response

Scottish court fees 2022-2025 – analysis of consultation

1. The Scottish Government thanks all the individuals and organisations who took the time to consider and respond to the proposals contained in the consultation paper on Court Fees.

Background to Consultation

2. The consultation on 'Scottish Court Fees 2022-2025’, was published on 10 December 2021 and asked seven questions on which views were specifically sought. The 12 week consultation period ended on 4 March 2022.

Proposals

3. The consultation sought views on the proposals for changes to the level of fees charged by the Scottish courts with the intention of obtaining the views of the general public and court users before the finalisation of the fee instruments, which will be laid in May 2022.

4. Those fees instruments relate to the fees for the three year period from 1 July 2022 to 31 March 2025 to be charged by the Court of Session, High Court of Justiciary, Sheriff Appeal Court, Sheriff Courts including Sheriff Personal Injury Court, Justice of the Peace Courts and Office of the Public Guardian.

5. The main proposal in the consultation paper was that court fees should be increased by 2% in 2022, followed by further 2% rises on 1 April 2023 and 1 April 2024 in order to reflect inflationary pressures.

6. In addition to inflationary increases, some relatively minor amendments to existing fee narratives were proposed to ensure consistency and to simplify the fees in order to meet our objective of making fees easier to understand and administer.

7. Overall the proposals reflected the Scottish Government’s commitment to ensuring that the courts are funded to deliver a justice system that is affordable and which provides a high-quality service to those who have cause to use it. It is also committed to ensuring that access to justice is protected through a well -funded system of exemptions and legal aid. The proposals were also informed by the Scottish Government’s consideration of the Supreme Court judgment in UNISON v the Lord Chancellor^[1] on fees charged in the Employment Tribunal, as well as wider developments provided for in the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, which increases the funding options for pursuers of civil actions and introduces a greater level of equality to the funding relationship between pursuers and defenders in personal injury actions.

Consultees

8. The consultation paper was published on the Scottish Government website and circulated to a number of organisations that are directly involved with the legal process such as legal professionals, organisations in the justice system and the judiciary, as well as organisations with an interest in consumer legal issues.

9. Interested parties were afforded the opportunity to feed back their opinions by downloading the consultation paper from the Scottish Government website or responding online through the Scottish Government consultation hub, Citizen Space.

10. Consultation exercises like this are not numerically representative; rather they aim to elicit the views and experiences of a range of stakeholders. Owing to the quantity and relatively narrow range of respondent types, it is considered that it would not be appropriate to present the results in percentage form. The small number of responses is thought to be indicative of the specialised nature of the consultation.

Overview of Responses

11. A total of 15 responses were received from organisations and individuals.

12. Where respondents gave permission, their responses have been published on the Scottish Government website.

13. Not all of the respondents answered all of the questions set out in the consultation questionnaire. Some respondents commented on matters that were only indirectly relevant to the consultation. Those comments have also been summarised where appropriate.

14. A table detailing the category of respondents and the number of responses received is provided below:

Individuals: 2

Legal firms and regulatory and representative bodies: 6

Government agencies and public bodies: 2

Non-governmental organisations: 5

Organisations which responded to the consultation

Association of Personal Injury Lawyers

Citizens Advice Scotland

CMS Cameron McKenna Nabarro Olswang LLP

Environmental Right’s Centre for Scotland

Equality and Human Rights Commission

Faculty of Advocates

Forum of Insurance Lawyers

Human Rights Consortium Scotland and the Scottish Association of Law Centres

Inclusion Scotland

Law Society of Scotland

Police Scotland

Scottish Civil Justice Council

Society of Solicitor Advocates

Findings

15. This report includes a summary of the responses to the Scottish Government Consultation. Individual responses are not repeated verbatim in the report. We have set out the questions posed in the consultation questionnaire and have provided examples of comments from respondents.

Conclusion

16. Having fully considered the views of those who responded to the consultation, the Scottish Government has decided to implement the increases to court fees proposed in the consultation to allow for expected inflation as well as the more minor adjustments proposed. In addition the Scottish Government has listened to the consultation responses and taken forward some suggestions put forward. The next review of court fees is scheduled to take place in 2024 with a view to further changes in 2025. In the meantime, the Scottish Government will continue to monitor the impact of changes to court fees and wider courts reform.

Responses to questions

Question 1

Do you agree that court fees should rise by 2% in the financial year commencing 1 April 2022 and by a further 2% in each of the following two financial years commencing 1 April 2023 and 1 April 2024?

Yes: 1

No: 10

Not answered: 4

17. Most of the respondents who answered this question were clear that they did not approve of court fees per se, expressing the view that court fees act as a barrier to justice. Nine out of the ten (the Faculty of Advocates (the Faculty), the Law Society of Scotland (LSS), the Society of Solicitor Advocators (SSA), Citizens Advice Scotland (CAS), the Association of Personal Injury Lawyers (APIL), the Forum of Insurance Lawyers (FOIL), the Equality and Human Rights Commission (EHCR), the Human Rights Consortium Scotland and the Scottish Association of Law Centres (HRCS/SALC), and Inclusion Scotland) considered that the burden of maintaining the civil courts should fall upon the taxpayer either entirely or to a significant degree. For example, the SSA wrote:

“We are concerned that an increase in court dues annually by 2% will be a potential barrier to access to justice. The court service is for the benefit of society and in our opinion, the majority of funding ought to be through taxation. We therefore disagree with the proposition that court users should meet the cost of the court system.”

18. Some respondents identified the position of those of limited means (but above the level of income that would qualify for exemption) as a source of concern. HRCS/SALC referenced Article 6(1) of European Convention on Human Rights which protects a right to a fair hearing.

19. HRCS/SALC drew an analogy with other services such as health care provision which is free at the point of need, suggesting that access to justice should be similarly treated. Some respondents, drawing from the Supreme Court judgement, stressed that the benefits of court judgements are felt by society at large and not just the participants in the particular case.

20. Four of the responses, all of whom oppose the current system of fee charging, commented in reference to UNISON v Lord Chancellor^[2]. For example, HRCS/SALC stated:

“For as long as court fees are a feature of Scotland’s justice system, we welcome the Scottish Government’s commitment to protecting access to justice through a well-funded system of exemptions and to considering concerns about access to justice for vulnerable people. In the 2017 Supreme Court UNISON judgment, Lord Reed stated:

‘In order for the fees to be lawful, they have to be set at a level that everyone can afford, taking into account the availability of full or partial remission.’”

21. The LSS singled out fees for the Office of the Public Guardian (OPG) in particular saying:

“Turning specifically to fees due to the Office of the Public Guardian (OPG), we do not support any rise in OPG fees. In relation to OPG fees, in particular, consideration should be given to the savings made to public funds as a result of taking measures through the OPG (which trigger these fees). This is particularly so in relation to fees for powers of attorney.”

Question 2

Do you have any views on the operation of the court fee exemptions system? In particular, we would welcome comments on the impact of fees in relation to access to justice for party litigants with a disability.

22. The SSA, which considers that court fees should be paid out of the public purse, wrote: “The operation of fee exemptions works well in our experience.”

23. A rather different view was taken by the Faculty which argued that litigants in person at a disadvantage in court actions compared to those who have legal representation. This respondent considered that fee exemptions should not encourage litigants in person them but support those who have legal assistance pro bono.

24. Various suggestions were made as to how the exemptions system should be widened.

• Three respondents (LSS, CAS, and HRCS/SALC) considered that those in receipt of Personal Independence Payments (PIP) should be exempt.
• HRCS/SALC suggested that court fee exemptions were needed for:
  • discrimination claims under the Equality Act 2010;
  • all human rights cases which they considered are always in the public interest;
  • court actions and public interest interventions brought by the Equality and Human Rights Commission, the Scottish Human Rights Commission, and the Children and Young People’s Commissioner Scotland;
• They also proposed that, in the future, court actions provided for by the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (under section 7 of the Bill as passed by the Scottish Parliament – ‘Proceedings for unlawful acts’) and court actions provided for in the future Bill introducing a new human rights framework for Scotland should be exempt.

25. The LSS proposed that the Scottish Government should look at the South African model where costs are not imposed on losing parties engaging in good faith or the Scottish tribunals where fees not levied as alternative models.

26. EHCR, HRCS/SALC considered that more research by the Scottish Government and the SCTS was needed on the impact of fees in relation to access to justice for party litigants with a disability.

Question 3

The Scottish Government is seeking views on whether to exempt environmental cases within the meaning of the Aarhus Convention. Do you consider that such cases should be court fee exempt? If so, how would you define an Aarhus case? Views on fees for public interest litigation more broadly would also be welcomed.

Yes 6

No 0

Not answered 9

27. The Faculty, ERCS, SSA, FOIL, HRCS/SALC, and EHCR answered this question and all six were in favour of exempting Aarhus cases from court fees.

28. ERCS offered a definition of Aarhus Convention cases is as follows:

(a) an appeal under section 56 of the Freedom of Information (Scotland) Act 2002 as modified by regulation 17 of the Environmental Information (Scotland) Regulations 2004;

(b) proceedings which include a challenge to a decision, act or omission which is subject to, or said to be subject to, the provisions of Article 6 of the Aarhus Convention; or

(c) proceedings arising from an act or omission by a private person or a public authority which contravenes the law relating to the environment.

These are slightly amended versions of the Rules of the Court of Session, Chapter 58A which deals with applications for protective expenses orders in Aarhus cases.

Question 4

Do you have any views on fees and exemptions which you would like to share relating to group proceedings as discussed in section 2 of this consultation paper?

29. There was a view that it was still too early to make rules about fees and exemptions relating to group proceedings. APIL took this view. In particular the views of the Scottish Civil Justice Council (SCJC) which is responsible for court rules should be noted.

“The issue of the fees and expenses regime for group proceedings was considered by the SCJC during the policy development of the court rules which are now in place (S.S.I. 2020/208). A number of respondents to the SCJC consultation on the rules proposals raised questions about the judicial expenses and fees structure for these proceedings. The SCJC concluded then that until there is relevant operational experience and data available from the SCTS the cost of servicing the new procedure is unknown. In the absence of such information, the SCJC came to a view then that it was not possible to agree any policy on any new fees provision, and that a review would be undertaken by the SCJC Costs and Funding Committee following the rules being in operation for a period of time.”

30. Other respondents did offer some suggestions. For example, CMS Cameron McKenna Nabarro Olswang LLP considered that there should be a tailored approach with the fees reflecting the cost of group proceedings to SCTS and that the fees should not prohibit participation. The Faculty did not consider that the amount of extra work for the courts in having test cases justifies additional court fees.

31. HRCS/SALC considered that group proceedings are inherently brought in cases that affect many people and so can be understood to be in the public interest and as such should be exempt.

Question 5

Do you have any comment on the proposed technical changes to court fee narratives detailed in section 3?

32. Only the Faculty had comments on the proposed changes to the fee narratives. It agreed with the proposed changes to:

• motion fees;
• insolvency;
• multiplepoindings/counterclaims;
• Court of Session motions; or
• a fee for complaint in Sheriff Court Fees Order.

33. The Faculty had concerns about the fee proposal for Annoying Creature applications. It considered that most such applications are likely to be brought in the public interest and that it seems likely that court fees will disproportionately fall on local authorities and animal charities.

Question 6

Do you have any other comments on the subject of this consultation paper or on the future direction of policy considerations for court fees in Scotland?

34. The Faculty and another respondent referred to the Faculty’s response to the 2016 Scottish Government consultation on court fees. That stated that civil justice should be paid for out of taxation rather than by court fees. It will be noted that a majority of respondents made this point in answer to question 1 above.

35. These above two and the LSS, FOIL, EHRC, and HRCS/SALC indicated their opposition to a policy of full-cost recovery which they claimed has seen massive increases in court fees over the last few years. One respondent representing defenders considered that they were unfairly targeted particularly in personal injury actions by this policy as, with the introduction of qualified one-way cost (QOCS) shifting, they were unable to recover expenses in cases in which the defender was successful.

Question 7

Do you consider that any of the proposals in this consultation paper are likely to have a disproportionate effect on people or communities who face discrimination or social exclusion owing to race, age, gender, disability, sexual orientation, or any other factor? If so, please specify your views on the possible impact.

36. There was only one response to this question. The respondent considered that those in vulnerable groups suffered most from discrimination and crime and that they should be protected by scrapping court fees.

37. In respect of those receiving PIP and other vulnerable groups, see the responses to question 2 above.