Plans to introduce the full recovery of civil court costs in Scotland would be damaging to access to justice, particularly for those bringing forward personal injury cases and more vulnerable people, the Law Society of Scotland has claimed.
The Society's response to the Scottish Government’s consultation on Scottish court fees adds its voice to that of the Faculty of Advocates in maintaining that the state has a duty to support access to the courts in a democratic society founded on the rule of law. (Click here for item on Faculty response.)
Ministers have proposed an average rise of 24%, either across the board or more selectively increasing some fees by more while leaving others untouched.
In the Society's view, any move towards full cost recovery should be avoided and the state has a duty to help people in achieve "equality of arms" in the courtroom.
It describes the proposed 24% rise as "unjust and unjustifiable".
Any new system for court fees would have to ensure they were proportionate, taking into account Lord Gill’s civil courts review, and the findings of Sheriff Taylor in his review of expenses and funding of civil litigation. The Society would prefer a targeted increase to an across the board one.
Citing the experience of employment tribunals, the Society adds that maintaining a system of full cost recovery "may risk a cycle where increasing fees lead to reducing cases, leading again to increasing fees and reducing cases". It calls for further research into price sensitivity, including the impact on those who do not qualify for legal aid and litigants in person, and also points out the implications for Scottish Legal Aid Board spending.
Syd Smith, of the Society’s Remuneration Committee, representing the views of pursuers’ solicitors, commented: “We think the focus of any review of court fees should be on redressing the balance between claimants and defenders in personal injury cases. However if the Government’s aim is to have a system where 100% of the cost of the courts are covered by fees paid by those involved in the actions lodged, it will be vital to have proportionate fee levels.
“The consultation option to introduce a 24% rise in court fees would represent an unjust and unjustifiable increase which would create a very real barrier to access to justice for claimants, especially vulnerable people who have suffered life changing personal injuries.
“Any change to the current system also needs to recognise that there is not a level playing field between personal injury claimants and the insurance companies who are the defenders in those claims. Any changes which fail to recognise this problem risk widening the existing gap.”