Civil court fees are to rise again in April, despite objections stated in responses to a consultation, the Scottish Government has confirmed.

In a response published along with a summary of the responses received, the Government reaffirmed its intention to increase fees in line with predicted inflation. 

It will also create the new fees and amend the fee narratives as described in the consultation, apart from minor changes to terminology arising from issues that emerged during the consultation.  

Other modifications announced are:

  • enhancements to the means-related exemptions;
  • special provision for victims of domestic abuse (irrespective of means);
  • a reduction to the permission to appeal fee;
  • a small increase in initiation fees (except in the case of simple procedure where the reduced fee of £20 will apply to claims up to £300, but from April 2019).

The analysis records that 22 responses were received to the consultation – 12 from legal organisations and firms, six from individuals, three from campaign groups or NDPBs and one from the insurance sector. Many expressed the view that court fees act as a barrier to justice (some challenging fees at any level), and highlighted the position of people just above the income level that would qualify for exemption.

There was opposition to removing the exemption for the first 30 minutes of a hearing in the Sheriff Appeal Court, on the basis that it would be unfair to charge a full day's hearing fee for a short hearing, and to the new fee for permission to appeal from that court.

Some respondents challenged the current model of charging fees on a "pay-as-you-go" basis. They preferred a model that involved fees being charged at the end of a case and paid only by the unsuccessful party. This would assist the cash flow of claims management companies and trade unions that bring forward claims of behalf of individuals.

In its response the Government accepts that society benefits from people being able to protect and enforce their personal rights and from the development of the law through court decisions, but does not believe that that is sufficient justification to rule out charging.

"In addition to any 'public good', both the pursuer and the defender in each individual case will derive a 'private good' from settling their dispute and the Government is resolved that some form of financial contribution from end users can be justified given that a private benefit is derived", the response states.

"The Scottish Government has chosen to fully fund the criminal courts but as there is a need to limit the demands on the public purse we will continue to look to the users of the civil courts to help fund those particular public services, i.e. an affordable 'user pays' model, with appropriate exemptions and legal aid available to those eligible, is considered appropriate for the civil courts in Scotland."

It adds: "For most litigants the court fee is only a small portion of the cost of litigation and the cost of legal advice is a far greater consideration. These considerations, taken alongside the exemptions regime, mean that is hard to discern many situations where the court fee is a serious deterrent to proceeding with legal action."

And it disputes that the deterrent effect of the employment tribunal fees annulled by the UK Supreme Court in the Unison case last year is at all comparable to the present situation in Scotland. Those who do not qualify for fee exemptions will be assisted in many cases by the Civil Litigation etc Bill currently before the Scottish Parliament.

Ending the pay-as-you-go system would place an additional burden on the taxpayer, including through debt recovery, and "The Scottish Government remains of the view that the paying of fees on behalf of the litigant is not an unreasonable burden to place on either trade unions or legal firms that choose to do so."

As for the Sheriff Appeal Court, "In practice the explicit references to rules of court in the fees narratives mean that the court can only charge for substantive hearings. The court will not charge for procedural hearings irrespective of whether they take less than 30 minutes or not."

Click here to access the analysis and response paper.