Funding Civil Justice in Scotland: Full Cost Recovery, at What Cost to Justice?
| Published date | 01 January 2020 |
| Date | 01 January 2020 |
| Pages | 49-73 |
| DOI | 10.3366/elr.2020.0599 |
| Author |
There are costs associated with the administration of a civil justice system. How should those costs be met? That is an important question for all legal systems. In Scotland, it is one that successive Scottish Governments have answered by finding ways for those costs to be met by the users of the court system. Such a policy can broadly be referred to as “full cost recovery”.
A recent consultation, which closed on 12 January 2018, sought views on the level of court fees in Scotland until 2021. It did so without stress-testing the overall policy of full cost recovery, but various consultees nevertheless took the opportunity to comment. Amongst the twenty-two responses to this consultation was a response from the Access to Justice Committee of the Law Society of Scotland.
A properly funded court system is an essential part of our civilised society and respect for the rule of law, and it is in the public interest to maintain a robust and respected system for resolving disputes. It is the proper responsibility of the state to fund that system.
With the consultation now closed, the Scottish Government response to that exercise available, and the court fees in subsequent Orders expected to run until 31 March 2021, it might be thought that it is rather late to analyse all of this, but whilst one consultation exercise has closed another will come around soon enough: some point in 2020 being the expected moment.
With that in mind, this article aims to inform any future Scottish consultation exercise, by critiquing full cost recovery in principle and by offering potential routes by which its implementation might be challenged. It will begin by explaining what full cost recovery actually is and investigating its origins, before interrogating some of the assumptions or acquiescence that seems to have developed around the issue and discussing the potential for litigation against court fees in Scotland.
A critical question for those interested in civil justice is not ‘what rights do we give?’, but having given those rights… what opportunities and structures do we provide for the public to enforce those rights and obligations or make good their entitlements?
Undergirding much of the discussion in this article is the notion of access to justice. It will be analysed in more detail below. It is important to state at the outset though that the meeting of costs involved in bringing legal proceedings – which forms an inevitable part of a transition to full cost recovery – is part of the access to justice mix. In simple terms, any increase in costs for a potential litigant will have an impact on those users who struggle to afford whatever those costs might be; much like the economic concept of price elasticity, stretching a fee to a higher level will (eventually) have an impact on how many people are able or willing to pay that fee.
For context, here is a snapshot of fee levels as at 1 April 2019 working through the court hierarchy. In the Sheriff Court, the default for raising proceedings is £129 unless another sum is specified, with a summary cause/simple procedure costing £104 to raise (or, for an action worth less than £300, only £19) and other particular procedures having set fees, and thereafter the defender may have to pay to respond (the corresponding default sum being £129) and then further costs may accrue depending on how the case develops.
Granted, there are some things that need to be considered alongside court fees. First, the general “expenses follow success”
Legal aid – another important feature in the access to justice mix which will be analysed in more detail below – offers a safety net for some, but there is an increasingly squeezed middle of those who are ineligible for support but unable to afford the costs associated with litigation, leaving a corresponding void in cases that are brought.
This article will not bring fresh empirical analysis into the impact that fees or indeed other litigation-related outlays and non-financial hurdles may have on people who find themselves facing a legal problem.
From the late 19th century until the early 1980s, fees in the Court of Session and Sheriff Court were set using powers in the Courts of Law (Fees) (Scotland) Act 1895 and the Sheriff Courts (Scotland) Act 1907 respectively. The powers to set court fees in both Acts was exercised by the Court of Session, acting with the approval of the Commissioners of Her Majesty's Treasury.
The power to set fees was then transferred to the Scottish Ministers under the Scotland Act 1998.
In respect of civil cases which reach the UK Supreme Court from Scotland, the Constitutional Reform Act 2005 provides that the Lord Chancellor can prescribe fees by order.
Full cost recovery (FCR) – the policy that the costs of the civil justice system should be funded directly by its litigants, rather than it being paid out of general taxation – pre-dates devolved government in Scotland. Prior to Devolution, the UK Government's policy had been to increase civil court fees up to the point of FCR.
Stephenson has remarked that the legislative history of court fees in Scotland was largely static from the early 20th century until the 1980s.
We understand that in the opinion of the Treasury the balance between expenditure and revenue of the County Courts should be adjusted on the basis that the State should bear the cost of the Court buildings and the salaries, pensions, and travelling expenses of the Judges, and that the rest of the expenditure should be defrayed by the suitors’ fees.
The issue of fees appears not to have surfaced again until the 1980s. The Twelfth Report for the Committee of Public Accounts for the 1981–1982 session noted that the Treasury's view on the matter had changed, that the policy was under review and some form of cost recovery would be sought.
Then – in the Government's Expenditure Plans 1983–84 to 1985–86 – it was stated that, “for...
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