Scottish court fees 2022-2025: consultation

Section 1: Background and proposals

Background to this consultation

1. The Scottish Government, in consultation with the Scottish Courts and Tribunals Service (SCTS), usually undertakes a review of the court fees raised in the majority of Scotland’s courts every 3 years and, as a result, new court fees are set for the following 3 years. The courts involved in such reviews are the High Court of Justiciary, the Court of Session, the Sheriff Appeal Court, the Sheriff Court including the Sheriff Personal Injury Court, the Justice of the Peace Court and the Office of the Public Guardian.

2. Following the previous review in October 2017, when new court fees were set for the period 2018 - 2021, there should have been a fee review in 2020. This was postponed owing to the pandemic. As the Scottish Government is now in a position to consider the level of court fees, this consultation sets out the proposed fees for a three-year cycle commencing April 2022.

3. The Scottish Government considers that consultation on the proposed changes to court fees and the level of fees set is important. We will take consultation responses into consideration when drawing up the Scottish Statutory Instruments that will provide for court fees in the financial years from 2022 to 2025.

4. The Scottish Government is committed to ensuring that the Scottish 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 the court system.

5. It is also committed to continuing to ensure that access to justice^[1] is protected through a well-funded system of exemptions from the requirement to pay court fees and the provision of legal aid.

6. Despite significant financial pressures, the legal aid system in Scotland maintains a wide scope of access to legal aid for both criminal and civil cases. Legal aid in Scotland is a demand-led system and all those who are entitled will receive it.

7. The Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (“the 2018 Act”) increases access to justice by making the costs of civil action more predictable and by increasing the funding options for pursuers of civil actions. Part 1 of the 2018 Act has now been implemented and imposes caps on the amount service providers can charge in success fee agreements. Further, the provisions implemented also provide greater availability of “no win, no fee” success fee agreements as solicitors are now able to enter into damages based agreements.

8. When fully implemented, the 2018 Act will also protect pursuers from the risk of having to pay their opponents’ costs in personal injury cases if the case is lost, provided they have acted properly.

9. Beyond this overriding objective of ensuring access to justice, the Scottish Government believes that those who make use of the services of the courts should meet, or contribute towards, the associated cost to the public purse where they can afford so to do, thus reducing the burden upon the taxpayer.

10. The responsibility for setting court fees is a matter that lies with the Scottish Ministers and is put into effect by statutory instruments laid before the Scottish Parliament. As these instruments establish statutory fee-charging regimes, which the Scottish Courts and Tribunals Service (SCTS) administer, the Scottish Government works closely with SCTS on its fees policy. The current statutory instruments (to be referred to collectively as “the court fee Orders”) are as follows:

• The Court of Session etc. Fees Order 2018
• The High Court of Justiciary Fees Order 2018
• The Sheriff Appeal Court Fees Order 2018
• The Sheriff Court Fees Order 2018
• The Justice of the Peace Court Fees (Scotland) Order 2018
• The Adults with Incapacity (Public Guardian’s Fees) (Scotland) Regulations 2018

11. In each of these instruments, schedule 3 remains in force as no court fee Orders were made in 2020. The instruments can be found on the website of the SCTS at https://www.scotcourts.gov.uk/taking-action/court-fees.

Overview of the consultation proposals

12. The purpose of this consultation is to seek views on proposals to revise court fees in Scotland so that the fees raised in our courts continue to contribute appropriately to the cost of the business undertaken in those courts. We are also seeking views on a range of potential changes to Scottish court fees, including:

• a 2% annual increase to court fees in each April of 2022, 2023, and 2024;
• exemptions in certain circumstances from the need to pay court fees;
• whether environmental cases within the meaning of the Aarhus Convention should be exempt;
• group proceedings changes;
• expansion of the types of motions to which court fees will apply;
• new court fees for insolvency matters and annoying creature applications;
• reduction in court fees for some family actions in the Court of Session;
• amalgamation of fee narratives resulting in some court fees changes; and
• various minor amendments to shorten court fee tables following anomalies identified by SCTS in the court fee system.

Comments on all aspects of this consultation are invited from interested parties and a full list of questions is set out at the end of this consultation paper.

13. The Scottish Government considers it vital that the extensive system of exemptions is maintained and special consideration is given to the parts of the court system that might give rise to particular concerns about access to justice for vulnerable people.