Scottish court fees 2022 to 2025: equality impact assessment

Equality Impact Assessment Record

Title of policy/ practice/ strategy/ legislation etc: Scottish Court Fees Orders 2012-2025 (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)

Minister: Ash Regan

Lead official: Walter Drummond-Murray

Officials involved in the EQIA

Name: Michael Green

Walter Drummond Murray

Team: Courts & Tribunals

Directorate: Division: team Justice: Civil Law and Legal System Division Courts & Tribunals Team

Is this new or revision to an existing policy?: Revision to existing policy

Screening

Policy Aim

1. The Scottish Government published a Consultation on Court Fees on 10 December 2021^[1] The proposals consulted on were for increases of court fees to take account of projected inflation for the next three years. In addition it departs from the inflation only rises in a few cases and makes relatively minor amendments to fee narratives in order to improve consistency and take account of the experience of a number of court reforms that have been introduced in the last few years.

2. The policy contributes to the Scottish Government's Wealthier and Fairer and Safer and Stronger objectives, through the following national outcomes.

• Our public services are high quality, continually improving, efficient and responsive to local people's needs;
• We have strong, resilient and supportive communities where people take responsibility for their own actions and how they affect others; and
• We live our lives safe from crime, disorder and danger.

Whom will it affect?

3. Court fees have an impact on all civil court users that are not in receipt of fee exemptions. Currently, those persons in receipt of civil legal aid, passported benefits, universal credit and working tax credit (including child tax credit, or the disability element, or the severe disability element) with a gross annual income of £18,000 or less are exempt from paying court fees.

4. In considering the impact of the inflationary fee increases on specific groups, the Scottish Government considers that affordability would be the main issue. If some groups identified by race, religion or belief, disability, age, caring responsibilities, gender or sexual orientation typically earn less than average, the Scottish Government considers that assistance from legal aid and the available exemptions ensure that these groups would be protected and so the Scottish Government consider that they would not be discriminated against as a result of inflationary court fee increases.

5. For persons who are not eligible for exemption from fees, if they are the successful party in civil litigation they will be entitled to have court fees and other outlays reimbursed to them by the losing party. In some cases, pursuers (claimants) may not in practice have to pay court fees because the law firm they are using or a trade union backing them may be in a position to pay the fees. Further, the Scottish Government commenced the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (the 2018 Act)^[2] which has introduced various provisions which make civil litigation more accessible, namely that:

• a pursuer can now enter into a "success fee agreement" (broadly, a no-win-no-fee agreement) which means that they should not be liable to make any payment for court fees or other outlays as that the cost of these should be borne by the legal provider;
• in personal injury cases and related appeals, the court's ability to make an award of expenses against a person bringing an action is restricted by qualified one-way costs shifting (QOCS) providing that they and their legal provider conduct the proceedings in an "appropriate manner"; and
• the 2018 Act provides for a form of class action to be known as group procedure which would mean that in the case of multi-party litigation, instead of multiple claims each bearing court fees, there would be a single action^[3].

6. The Scottish Government has given careful consideration to those in vulnerable groups in drafting the 2022 fees orders and the 2022 fee regulation. The threshold for those on benefits has been increased from £18,000 to £20,592, in line with the current living wage. We have also introduced an exemption for those who have been awarded the personal independence payment (PIP) for those with a gross annual income of £20,592 or less.

Environmental

7. In the main, there is nothing to suggest that there would be a particular environmental impact from these proposals with one exception. The Aarhus Convention Compliance Committee in its report in 2021 found that Scotland was in breach of Article 9(4) of the Aarhus Convention which states that "review procedure shall provide adequate and effective remedies and be fair, equitable, timely and not prohibitively expensive". In response to this report, the Scottish Government has decided to exempt Aarhus environmental cases from court fees in the Court of Session.

Rural Impact

8. The proposals increase fees that would be charged by court services across Scotland and so do not impact disproportionately on rural communities.

Enforcement/Sanctions/Monitoring

9. Nearly all fees are paid for in advance of the service so the sanction for non-payment is that the service will not be performed. The proceedings may be struck out if the fee is not paid.

What might prevent the desired outcomes being achieved?

10. No factors that might prevent the desired outcomes being achieved have been identified. However, the projected income generated by the proposals is based on assumptions regarding case levels. If numbers and cases decrease this would affect the levels of cost recovery. The latest SCTS Annual Report indicates a fall of cost recovery from 64% in 2019-20 to 58% in 2020-21^[4]. The Scottish Government is mindful that court fees must be set in consideration of the impact upon access to justice. Put simply, it would be unwelcome if fees are set at a level that discourage potential litigants with meritorious claims from bringing their cases to court to vindicate their rights (although there are arguments that it may be desirable for some types of action e.g., low value claims to be determined by alternative dispute mechanisms or otherwise settled without court action).