Scottish court fees 2022-2025: consultation

Section 2: Consultation – substantive proposals

14. In this section, we discuss:

• increases which the Scottish Government considers should be applied to court fees during the three-year cycle 2022 to 2025 and the reasons why it considers these increases to be appropriate;
• exemptions from court fees;
• fees relating to some environmental cases; and
• fees for the newly introduced group proceedings.

Increase in Court Fees - Adjusting for inflation

15. Court fees in Scotland have generally been reviewed by Scottish Ministers every three years. The last full round was implemented in 2018.

16. The COVID-19 pandemic has resulted in extraordinary measures being taken by the Scottish Government and by SCTS. During the lock-down periods, some sheriff courts were temporarily closed and business transferred to ten hub courts with non-essential civil court business being delayed. However, SCTS has re-opened these sheriff courts and has resumed as much civil business as possible within the current Covid restrictions and guidelines. As the courts recover from the pandemic measures, they may look somewhat different from how they did previously and a greater reliance on technology in conducting court business may be expected to continue. The Scottish Government has recently consulted on proposals for public services and justice system reform, and proposals to respond to the impact of Covid in the justice system specifically, where backlogs have unavoidably built up. That consultation sought views on the 3 civil business related provisions included in temporary Covid legislation which have not already been made permanent. The provisions allow for the online publication of certain court documents; electronic transmission of documents and measures to allow people to attend court by electronic means such as video conferencing.^[2]

17. Given the difficulties experienced by SCTS and court users during the last 18 months, the Scottish Government concluded that it would be inappropriate to conduct the normal three-year cycle court fees review. This has resulted in there being no increase in court fees in the financial year 2021-2 with schedule 3 of each of the court fees Orders continuing to apply during this period.

18. However, the Scottish Government considers that as fees were not raised in 2021, it is now necessary to resume the three-year cycle and introduce statutory instruments into the Scottish Parliament to provide for court fees covering the financial years 2022-2025. In this consultation, it is proposing that these will be court fee Orders that, in the main, will only provide for increases in line with inflation.

19. The Office for Budget Responsibility (OBR) inflation forecasts for 2022 are set out in the following table. It also shows the OBR Retail Price Index (RPI) and Consumer Price Index (CPI) forecasts as at October 2021.

November	2021	2022	2023	2024
RPI	3.6	5	3.4	2.8
CPI	2.3	4	2.6	2.1

20. The rate of inflation appears to be rising more quickly than was expected earlier this year with the Office for National Statistics CPI inflation figure for August 2021 being 3%, up from 2.1% in July 2021. The target set for inflation by the UK Government is 2%. The Bank of England’s Monetary Policy Committee (MPC) expects to achieve a rate close to the 2% Government target in the medium term stating in its report for November 2021:

“Twelve-month CPI inflation fell slightly from 3.2% in August to 3.1% in September. Bank staff expect inflation to rise to just under 4% in October, accounted for predominantly by the impact on utility bills of past strength in wholesale gas prices. CPI inflation is then expected to rise to 4½% in November and remain around that level through the winter, accounted for by further increases in core goods and food price inflation.

…CPI inflation is projected to be a little above the 2% target in two years’ time and just below the target at the end of the forecast period.”^[3]

21. Having considered these factors, the Scottish Government proposes that there should be a 2% annual increase in court fee levels with effect from 1 April 2022 to reflect inflationary pressures as well as the financial pressures on SCTS in operating the courts during the COVID-19 pandemic. Similar increases are also proposed for the two subsequent years, taking effect on 1 April 2023 and 1 April 2024.

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?

Court fee exemptions

22. Whilst the Scottish Government believes that the costs of the civil courts should be borne by court users rather than by the taxpayer, it is committed to ensuring that there is protection for those who are unable to pay court fees. This protection is provided for by a generous, extensive and easy to access range of exemptions that are offered to those on lower incomes. The exemptions regime ensures that court users with limited means are not being denied access to justice.

23. In respect of those ineligible for exemption, a successful party in court litigation will normally be entitled to recover their outlays including all court fees paid from the outset. In other words, if they win their case, they will be entitled to have court fees paid back to them by the other party. In some cases a pursuer (claimant) will not be required directly to pay court fees, even if they lose their case, because their law firm, or a funding company, or a trade union is in a financial position to pay court fees for them. As already mentioned above, the Scottish Government has built on these protections in personal injury actions in the 2018 Act so that a pursuer entering into a success fee agreement (broadly, a “no win no fee” agreement) will not have to pay court fees themselves, and should they lose their case, they will have the benefit of qualified one way cost shifting (QOCS), which means they will not have to pay the defender’s court fees.

24. In the main, the majority of those who qualify for exemption do so because they qualify for legal aid. The current range of exemptions is listed below.

Persons may be entitled to exemption from paying court fees in the following circumstances:

• The litigant or their spouse/civil partner are in receipt of:
  • income support;
  • income-related employment and support allowance;
  • pension credit guarantee credit;
  • working tax credit, including child tax credit; or
  • working tax credit, including a disability or severe disability element and gross annual income used for calculation of tax credit is £18,000 or less.
• The litigant or their spouse/civil partner have, within the period of 3 months prior to the date the specified fee would be payable but for this exemption, received financial or other assistance under the Welfare Funds (Scotland) Act 2015.^[4]
• The litigant is in receipt of:
  • income-based jobseeker's allowance; or
  • Universal Credit
• The litigant may also be entitled to exemption from paying court fees if:
  • they are receiving civil legal aid in respect of the matter for which the fee is payable (Section 13(2) of the Legal Aid (Scotland) Act 1986^[5] refers);
  • the fee is payable in connection with a simplified divorce or dissolution of civil partnership application and they are receiving advice and assistance from a solicitor in respect of that application (Legal Aid (Scotland) Act 1986 refers); or
  • the fee is payable in connection with work being undertaken by their solicitor which qualifies for civil legal aid as matter of 'special urgency' (Section 36 of the Legal Aid (Scotland) Act 1986 refers).

25. Scottish Parliamentary petition PEO1784 (lodged on 05 February 2020), raised a question about access to justice for those who are disabled and wished to conduct their case as a party litigant.^[6] The petition argued that court fees were a real barrier for the disabled who wished to take this course of action. It proposed that those receiving Personal Independence Payment (PIP) should be exempt from court fees.

26. In July 2021, there were 292,231 people entitled to PIP in Scotland. PIP can help with extra living costs if a person has both a long-term physical or mental health condition or disability, and difficulty doing certain everyday tasks or getting around because of their condition, whether they are working or not.

27. PIP is not used as a benefit which exempts a person from court fees in any other jurisdiction in the United Kingdom (though it is not counted as income in England and Wales). It is not an income related benefit and, as such, is not in itself, an indicator of low income. It does not, therefore, meet the policy criterion used by the Scottish Government to ensure that those on a definable low income are protected by exemption from court fees. Consequently, the Scottish Government is not minded to make PIP a criterion for exemption from court fees.

28. However, this will not mean that all those receiving PIP will be liable for court fees. Only some of those on PIP will not be exempted, as many others on low incomes will be eligible for civil legal aid, or will be in receipt of passported benefits, or Working Tax Credit (including child tax credit, or the disability element, or the severe disability element) with gross annual incomes of £18,000 or less, and will consequently be exempt from paying court fees by way of exemptions which are already in place

29. In considering the impact of court fees on specific groups, the Scottish Government considers that affordability of the courts fees by specific groups is the main issue. However, the Scottish Government is committed to access to justice and would welcome views on how that may be enhanced for party litigants with a disability.

Question 2

Do you have any views on the operation of the 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.

Environmental cases

30. The European Union (EU) and the United Kingdom are parties to the UNECE (United Nations Economic Commission for Europe) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention). The Aarhus Convention arrangements are not affected by the UK’s exit from the EU and the Scottish Government is committed to this Convention.

31. The Aarhus Convention stands on three “pillars”: access to information, public participation and access to justice, provided for under its articles 4 to 9^[7]. The third pillar, relating to access to justice, requires state parties to ensure there is a public right to challenge environmental decisions made in breach of the first two pillars or in breach of other environmental legislation. Aarhus Convention article 9 requires that judicial procedures to challenge environmental decisions are “timely and not prohibitively expensive”. Environmental non-governmental organisations argue that court fees are a contributory factor to prohibitive costs for many in environmental cases in Scotland and are thus a barrier to environmental justice.

32. An “Aarhus Convention case” refers to a case brought by the public to make legal challenges to decisions from a public authority which may affect the environment. More specifically, such cases involve one or more members of the public, or an environmental non-governmental organisation, bringing forward litigation which is within the scope of the Aarhus Convention:

• to assert the public’s right to access environmental information (under article 9(1) of the Convention);
• to assert the public’s right to participate in environmental decision-making and procedure (article 9(2)); or
• to challenge the legality of any decision, act or omission by a private person or a public authority which contravenes any other environmental law (article 9(3)).

33. The Scottish Government would welcome views on whether environmental cases which should be exempt from court fees. Were Aarhus Convention cases to be exempt from court fees then this would enhance access to justice by making justice more affordable. The main question, if such an exemption were created for Aarhus Convention cases, is how to distinguish between Aarhus Convention cases and other environmental cases, or any other types of action, so that any exemption is appropriately targeted.

34. It is acknowledged that there are many other types of action in addition to Aarhus Convention cases that could be regarded as “public interest litigation”, that is, the use of the law to advance human rights and equality or raise issues of broad public concern, rather the narrow concerns of individual litigants. To that extent, any movement towards exempting fees on the basis of the subject matter of the action (e.g. the environment) may be seen as a first step.

35. However, there are difficulties in identifying actions that might be appropriately considered for a reduction in fees. It might be said that we “know public interest litigation when we see it” and therefore exemptions should be made available to apply when appropriate litigation comes to light, but that does not mean it is readily identifiable in terms of a fairly rigid statutory scheme of fee exemption. We would welcome views on how a broader system of exemption might work. The Scottish Government is also mindful that widening the types of cases that are exempt from court fees increases the burden on the taxpayer.

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.

Fees for group proceedings

36. Part 4 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 introduces “group proceedings” which will only be available in the Court of Session. They are similar to what is known as “multi-party actions” or “class actions” in other jurisdictions. The 2018 Act specified that group proceedings could be on an opt-in or an opt-out basis. Opt-in proceedings were implemented in 2020.

37. The Scottish Government considers that these proceedings are likely to require special court fee arrangements to be put in place. However, it has been agreed with SCTS that, to date, there have been too few group proceedings cases under this new legislation which would allow conclusions to be drawn as to how any new court fee arrangements should look. Consequently, for the time being, group proceedings will continue to attract court fees under the Court of Session etc. Fees Order 2018. We would, however, welcome views on court fees for group proceedings going forward.

38. Consideration will be given as to what is required as regards amendment to the Court of Session etc. Fees Order in order to take account of group proceedings. In a group proceeding, a single representative case on behalf of the whole group is brought before the Court of Session. There is a question as to whether that representative case should pay the same court fees as an individual case might pay for court fees; or whether group proceedings should instead pay different, specific court fees relating only to group proceedings? This is the first opportunity in the three-year cycles of court fee reviews that the Scottish Government to take account of group proceedings.

39. In addition, there is also the question of how fee exemptions might be applied to group proceedings. For example, if one or more of the parties in a group proceeding (but not all such parties) would have been entitled to a fee exemption had they raised their own individual proceedings, should the group proceeding case to which they are a party be entitled to similar exemption to court fees? Alternatively, should court fee exemption be unavailable in group proceedings, or perhaps only available if all parties in the group proceeding are entitled to such an exemption? Could partial court fee exemption be an option and, if so, how might this work?

40. The Scottish Government is still considering how best to approach court fees and exemptions in respect of group proceedings and we would welcome any views relating to court fees payable in group proceedings.

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?