Scottish court fees 2022-2025: consultation

Section 3: Consultation – technical changes to court fee narratives

41. In light of experience of the operation of the present system, the SCTS has suggested certain changes to the fees narratives. The Scottish Government agrees that these changes should be made in order to simplify or clarify the narratives, remedy omissions, or delete otiose entries.

Motion fees

42. The Scottish Government proposes amending the definition of the word ‘motion’ in article 2 the Sheriff Court Fees Order 2018 by removing reference to specific rules. The SCTS has indicated that the current definition has caused difficulties for some time and this proposal is intended to put beyond doubt that a fee is payable for a motion in other types of procedure.

43. The proposal is that motion could be defined as any written motion lodged with the sheriff clerk in any proceedings. This will enable fees for motions to be payable in cases which do not proceed under the Ordinary Cause Rules, for example, adoption and bankruptcy cases.

New court fee for Annoying Creature applications

44. The Scottish Government is considering whether a new court fee should be introduced in respect of applications to the justice of the peace court (JP court) under section 49 of the Civic Government (Scotland) Act 1982^[8] regarding annoying creatures.

45. Although relatively infrequent, these applications to the JP court involve administrative work to register such an application, prepare the order for service and assignment of the hearing, the cost of the hearing itself, the preparation of the minute and order following the hearing, and the cost to serve the order by recorded delivery. All of these costs are currently incurred by SCTS without any court fee being payable.

46. SCTS considers that the work involved in dealing with annoying creature applications is similar to that involved in a summary application in the sheriff court (currently subject to a court fee of £132). Consideration has been given to the difference between applications in the JP court and applications in the sheriff court in that the costs incurred in the sheriff court are higher than those involved in the JP court.

47. The closest type of application in the JP court to an annoying creature application is an utility warrant application. These utility warrant applications are currently subject to a court fee of £12 by virtue of paragraphs 1 of the Table of Fees in schedules 1, 2, and 3 of the Justice of the Peace Court Fees (Scotland) Order 2018.

48. As annoying creature applications involve more work and time than utility warrant applications, the Scottish Government proposes that it is appropriate for a court fee to be payable by applicants somewhere between the two figures of £12 and £132. We would welcome views on the proposal of a fee and the level at which it should most appropriately be set.

Insolvency

49. The commencement of the Corporate Insolvency and Governance Act 2020^[9] has highlighted that, there is no separate entry in the Sheriff Court Fees Order 2018 providing for a court fee for “the lodging of notice of appointment or intention to appoint an administrator out of court under the Insolvency Act 1986” (“the 1986 Act”). Instead, the initial writ fee is charged. However, there is a fee entry in the Court of Session Fees Order 2018. This is an anomaly as the procedure is more or less the same in both the sheriff court and the Court of Session. In order to address this, the Scottish Government is considering adding an entry in the Sheriff Court Fees Order indicating a court fee equivalent to that of an initial writ.

50. Section 1 of the 2020 Act introduces provisions for applications to obtain a moratorium under Part A1 of the 1986 Act. Where the moratorium is sought by directors of an eligible company which is not subject to an outstanding winding up petition and is not an oversees company, documents can be lodged at court. The process is similar to the lodging of a notice of appointment or intention to appoint an administrator as set out in the paragraph above. However, there is currently no fee payable in either the sheriff court or Court of Session in these circumstances. The SCTS has flagged this as being an anomaly that should be addressed. In order to do so, the Scottish Government is considering whether a court fee equivalent to that of an initial writ should be payable in the sheriff court and whether paragraph 18 of the Table of Fees in the schedules of the Court of Session etc. Fees Order 2018 should be amended to include reference to obtaining a moratorium.

Multiplepoindings/counterclaims

51. The Sheriff Court Fees Order 2018 specifies a number of court fees that are payable by the pursuer in an action. In actions of multiplepoinding there can be occasions where the pursuer is no longer a party to the action. If, for example, where they are the holder of the fund in medio and they are exonerated from the claim. Where this happens, there are a number of fees which cannot be charged, e.g., the fee for fixing, allocating or assigning a proof.

52. In addition, in actions where a counterclaim is made, there can be instances where, for example, the pursuer no longer proceeds with their claim, meaning that only the defender’s counterclaim remains before the court. In these circumstances it may be considered that liability for payment of these fees, in the first instance, should fall to the defender instead.

53. In an effort to account for these circumstances, the Scottish Government is considering implementing one of the following two options.

i. Firstly, it could define the “pursuer” in article 2 of the Sheriff Court Fees Order 2018 to include a defender or third party when the pursuer is no longer a party to the action. The addition of this definition would shift liability for the payment of court fees to those added parties in the event the pursuer was no longer part of the proceedings, but where the pursuer remained party to the action then the defender or third party’s position in relation to court fees would remain unchanged. This option does not seek to increase the court fees payable, but the intention is to ensure that they are paid by one party or another in all circumstances.

ii. Secondly, it could amend the Sheriff Court Fees Order 2018 to provide that the court fees are payable by each party. This would result in all parties to the action having to pay court fees.

Court of Session motions

54. Article 7 of the Court of Session etc. Fees Order 2018 applies to motions which are enrolled in the process of the cause or made orally at the bar in accordance with rule 23.2 of the Rules of the Court of Session 1994^[10] (enrolment of motions). Article 7(3) provides that certain motions under certain Rules of Court are exempt from the payment of fees, and includes a list of those Rules of Court. The SCTS considers that rule 49.8A(2)(a) (warrant and forms for intimation to a child and for seeking a child’s views) of the Rules of the Court of Session 1994 should be added to that list. Consequently, the Scottish Government proposes to amend article 7(3) to include a reference to rule 49.8A(2)(a). Doing so will ensure that a fee is not payable for such a motion in a family action.

Consideration and addition of matters listed in certain court fee Orders

55. The list of fees for certain matters in the Table of Fees listed in the schedules to certain court fee Orders is considered extensive and the Scottish Government is considering amalgamating these lists.

56. The Scottish Government is considering the following amendments:.

i. Sheriff Court Fees Order 2018:

Table of Fees in Part I of schedule 1 - Commissary proceedings.

• The Scottish Government is considering amalgamating the entries under paragraph 1(a) to (e) so that there is one entry for all such petitions. This is on the basis that the fee for each is £19.00 and to list each petition individually is unnecessary. This amalgamation will also have the effect of ensuring that petitions for recall of a decree in a dative petition will also now be subject to a £19.00 court fee, which is not currently provided for in the current Table of Fees.
• Alternatively, if the Scottish Government decides not to take the amalgamation action above, the proposal is that petitions for recall of a decree in a dative petition should still be added as a new paragraph 1(f) in the Table of Fees. Petitions for recall of dative petitions require input by the judiciary and often result in the appointment of a new, or a replacement, or an additional executor dative (before Confirmation is granted). SCTS considers it to be an anomaly that a petition for a dative petition attracts a fee but a recall does not.

ii. Court of Session etc. Fees Order 2018:

Table of Fees in Part I of schedule 1 - Fees in the central office of the court. These proposed changes are not intended to affect the court fees paid.

• The Scottish Government is considering amalgamating paragraphs B9 and B10 on the basis that the fees are the same and that they both pertain to family actions. The intention is that the new paragraph will sufficiently reflect that a fee is payable for the lodging of answers or an opposition to a motion or minute for variation in a family action as well as application for such variation itself.
• The Scottish Government is considering amalgamating paragraphs C3 and C4. The intention is that the wording is to ensure that it is clear that where a person seeks to be admitted as both a notary public and a solicitor simultaneously, that both fees are payable (as is the case currently).

iii. The Adults with Incapacity (Public Guardian’s Fees) (Scotland) Regulations 2018

Table of Fees in Part I of schedule 1. These proposed changes are intended as a tidying up exercise which are not intended to affect the court fees paid.

• The Scottish Government is considering amalgamating paragraph 1(a), (b) and (c) on the basis that the fees are the same for each type of power of attorney. The suggested combined wording is: “Submission of a continuing power of attorney; a welfare power of attorney; or a combined continuing and welfare power of attorney, under section 19 of the Act.”
• The Scottish Government is considering amalgamating paragraphs 7 and 8 on the basis that the fees for each entry are the same. The suggested combined wording is: “Submission of an application for appointment under sections 26B and 26D of the Act.”
• The Scottish Government is considering amalgamating paragraphs 9 to 11 on the basis that the fees for each entry are the same. The suggested combined wording is: “Submission of an application for provision of a certificate, or duplicate certificate of authority, under sections 26E, 26F, and 26G of the Act.”
• The Scottish Government is considering amalgamating paragraphs 15(a) to (e) on the basis that the fee for each entry is the same. The suggested combined wording is: “Registration of guardianship orders or intervention orders or variations thereto; or registration of the renewal of a guardianship order, made under Part 6 of the Act (including, where appropriate, checking caution or other security and issuing relevant certificates).”

Fee for complaint in Sheriff Court Fees Order 2018

57. The Scottish Government is considering amending paragraph 17 of the Table of Fees in Part I of schedule 1, 2 and 3 of the Sheriff Court Fees Order 2018 to make clear the circumstances in which such a fee should apply. This is purely on a point of clarity that has been raised by SCTS operational staff. There are regular misunderstandings as to what the appropriate fee to charge is. There have been some instances where this fee has been incorrectly applied where a mere copy of a complaint has been requested with the result of a refund having to be issued. It is proposing that a fee for a complaint should only be payable in circumstances where a summary complaint is lodged and the prosecutor is not the procurator fiscal. This amendment will make it clear to both SCTS staff and court users what is being charged for and will have no negative impact on the actual fee charged.

Registration of clubs

58. The registration of a club or miners' welfare institute under the Gambling Act 2005^[11] is no longer competent and has not been for over 10 years. The Scottish Government recommends that Article 5(3) be removed from the Sheriff Court Fees Order 2018.

Bankruptcy

59. Paragraph 13 of the Table of Fees in Part I of schedules 1, 2, and 3 of the Sheriff Court Fees Order 2018 lists an entry “no fee”. Previously, by virtue of the Sheriff Court Fees Order 2015 (amended by the Sheriff Court Fees Order 2016), this entry referred to a court fee payable for applications for the approval of composition. As such an application is no longer listed in the Table of Fees in any of the schedules of the Sheriff Court Fees Order 2018, the Scottish Government proposes that this entry should simply be removed on the basis that it is no longer relevant. This is not intended to impact the court fees for litigants; but it is rather an exercise to clarify the current position.

Question 5

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