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Consultation on Expenses and Funding of Civil Litigation Bill

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Ministerial Foreword

photograph of Michael Matheson MSP Cabinet Secretary for Justice

The Civil Courts in Scotland are currently undergoing the most significant programme of reform in a generation.

The publication of the Scottish Civil Courts Review (SCCR) in 2009, which drew on the work of the Civil Justice Advisory Group before it, set out a comprehensive programme of reform. The structural changes envisaged by the SCCR have been implemented by the Scottish Government under the auspices of the Making Justice Work programme. This programme brings together a number of work streams to secure high quality, affordable and accessible justice for people in Scotland. Key steps taken to date include the establishment of the Scottish Civil Justice Council and, most recently, the enactment of the Courts Reform (Scotland) Act 2014.

The implementation of Sheriff Principal James Taylor's Review of the Expenses and Funding of Civil Litigation in Scotland will complete this programme of reform in respect of the civil courts.

The role which expenses play in the context of civil litigation cannot be underestimated. As Sheriff Principal Taylor sets out in his review, the current unpredictability of the costs of civil litigation impacts on access to justice. The Report contains 85 recommendations aimed at delivering greater certainty and predictability in relation to the cost of litigation thereby increasing access to justice.

Sheriff Principal Taylor's report was presented to the Scottish Government in September 2013. The Government's response published in June 2014 set out how in principle we intended to take forward implementation. It included an analysis of which parts of Sheriff Principal Taylor's Report were for the Scottish Government to take forward by primary legislation and which parts were primarily for the Scottish Civil Justice Council and other organisations.

Since publication of its response the Scottish Government has discussed its proposals in relation to primary legislation with a short life working group of stakeholder representatives.

In light of those discussions, this consultation paper sets out our proposals for primary legislation on the expenses and funding of litigation.

It invites views on certain aspects of Sheriff Principal Taylor's key recommendations relating to speculative fee agreements, damages based agreements and qualified one-way costs shifting.

It also invites views on a number of other topics related to the expenses and funding of litigation, including legal aid for legal persons, multi-party actions and auditors of court.

I hope that you will submit views on our proposals and look forward to receiving them.

Michael Matheson MSP
Cabinet Secretary for Justice