We have a new website go to gov.scot

Consultation on Expenses and Funding of Civil Litigation Bill

Listen

Annex B: Relevant Recommendations from Lord Gill's Report of the Scottish Civil Courts Review

Chapter 9 Enhancing Case Management

129. The court's power to make solicitors personally liable for expenses occasioned by their own fault, or where they are guilty of an abuse of process, ought to be incorporated in statute; and that it should be extended to cover all those with rights of audience. (Paragraph 149)

130. The courts should have the power to order that agents or counsel may not charge their clients or SLAB for any work that is occasioned by any improper, unreasonable or negligent act or omission on their part. (Paragraph 150)

Chapter 13 Multiparty actions

157. We endorse the Scottish Law Commission's recommendation that there should be a special multiparty procedure. (Paragraph 64)

Certification criteria

158. There should be a procedure for certifying an action as suitable for multiparty proceedings. In considering whether to certify an action, the court should be satisfied that the applicant is one of a group of persons whose claims give rise to common or similar issues of fact or law; that the adoption of the group procedure is preferable to any other available procedure for the fair, economic and expeditious determination of the similar or common issues; and that the applicant is an appropriate person to be appointed as a representative party, having regard in particular to his financial resources, and will fairly and adequately represent the interests of the group in relation to the common issues. (Paragraph 65)

159. Before granting certification the court should be satisfied, on the basis of the pleadings and documents presented in support of the application for certification, that the pursuers have demonstrated a prima facie cause of action. (Paragraph 66)

160. The 'any other available procedure' test should include the availability of ADR, administrative remedies and regulatory mechanisms. (Paragraph 68)

161. Should representative bodies be given standing to bring proceedings on behalf of consumers or other groups whom they represent, the multiparty procedure should be designed in such a way as to permit those bodies with standing to make use of it. (Paragraph 69)

162. At any time after a certification order has been granted, the court should be entitled to order that the case should be transferred out of the group procedure on grounds that the criteria for certification are no longer satisfied. (Paragraph 70)

An optin or optout model?

163. It should be for the court to decide whether in the particular circumstances of a case an optin or an optout model would be appropriate. (Paragraph 79)

164. It will be necessary to amend the legislation relating to prescription and limitation to take account of a group litigation procedure which permits opting out. (Paragraph 82)

165. It will also be necessary to confer powers on the court to make an aggregate or global award of damages and for the disposal of any undistributed residue of an aggregate award. (Paragraph 83)

166. We agree with the SLC's recommendation that the new procedure should initially be introduced only in the Court of Session. (Paragraph 84)

The case management of multiparty actions

167. The certification order should describe the class or group of claimants on whose behalf the action is brought, the question or questions of fact and law which are common to the class and the remedy sought. It should also appoint the representative party or parties. (Paragraph 85)

168. The Court should have at its disposal a wide range of case management powers similar to those conferred on the commercial judge in the Court of Session and a general power to regulate procedure as thought fit with regard both to certified questions and any other matters at issue. In addition, the judge should have the power to make such orders as may be appropriate to ensure that the group proceedings are conducted fairly and without avoidable delay. (Paragraph 86)

169. Where a number of pursuers have a common factual or legal basis to their claims but initiate proceedings on an individual basis, it should be open to defenders to apply to the Court, or for the Court on its own initiative, to transfer the cases to the multiparty procedure. (Paragraph 87)

170. There should be a case management mechanism that would enable multiple sheriff court actions bearing on the same subject matter to be transferred to the Court of Session and managed on a multiparty basis, either on the motion of one or more of the parties or by the sheriff on his own initiative. In addition, the Lord President should have the power to direct that such litigation should be transferred to the Court of Session to be managed under the multiparty procedure. (Paragraph 88)

171. If an optout model is to be made available, it would be necessary to introduce a requirement for the court's approval of proposals to abandon or settle the action in order to safeguard the interests of those group members who are not parties to the action. (Paragraph 89)

Appeals

172. We agree with the recommendations made by the SLC regarding the circumstances in which it should be competent for the representative party to reclaim without leave an interlocutor disposing of an application for certification or decertification or identifying the common questions; and that where the representative party does not reclaim it should be competent for a group member to do so. (Paragraph 90)

How should multiparty actions be funded?

173. The general rule that expenses follow success should apply, in principle, to multiparty actions. The recommendations that we make in Chapter 12 on awarding expenses in public interest cases should apply to multiparty actions which satisfy the wider public interest criteria. (Paragraph 94, 109)

174. The additional responsibility involved in managing a group action should be a specific ground for awarding an additional fee. (Paragraph 97)

175. There needs to be a special funding regime for multiparty actions. On balance, we consider that it would be preferable to have special funding arrangements for multiparty actions to be administered by SLAB. (Paragraph 108)

176. There should be scope, in appropriate cases, for an award of expenses to be made against the multiparty action fund that we propose. (Paragraph 112)

177. Special criteria would need to be satisfied in order for financial assistance to be granted to a representative party. In particular, in applying the test of reasonableness, SLAB would have regard to the prospects of success, the number of members of the group, the value of their claims, the resources of the proposed defenders, and whether the proposed action raises issues of wider public interest that would justify the expenditure of public funds. It would be helpful for SLAB to be assisted by an advisory committee in dealing with such requests for funding. (Paragraph 113)

178. It should be possible for a grant of funding to be made on a conditional basis, for example, on a staged basis. The advisory committee should give advice to SLAB in relation to an initial request for funding, at the review stage, and also in relation to any offers in settlement. (Paragraph 114)

179. If a person seeks public funding to bring a multiparty action then this would have to be by way of an application to the multiparty action fund. Class members who are not representative parties would be able to apply for legal advice and assistance. (Paragraph 116)

180. It should be open to the multiparty action fund to limit funding to litigation of the common issues. (Paragraph 117)

181. Where multiple applications for civil legal aid are made by individuals which raise the same or similar issues of fact or law, such that it would be desirable for these to be litigated under the multiparty action procedure, SLAB should have the power to refuse to grant legal aid on an individual basis, applying the reasonableness test, and to invite an application to the multiparty action fund for funding for a multiparty action. (Paragraph 118)

182. Funding could be made available on a different basis for actions by representative bodies. An application for funding by a representative body would have to meet a public interest merits test. In addition, the multiparty action fund would have a broad discretion to determine whether it would be reasonable to make public funds available, having regard to the resources of the organisation and the potential for the issues to be resolved by other means. (Paragraph 119)

Chapter 14 The cost and funding of litigation

Judicial Expenses

183. There should be a significant increase in the block fee for prelitigation work to reflect work properly and reasonably carried out in connection with investigation and intimation of the claim, discussions on settlement and compliance with a preaction protocol where applicable. (Paragraph 50)

184. The Lord President's Advisory Committee should review the adequacy of the block fee for proof preparation. (Paragraph 52)

185. We support the introduction of a judicial table of fees for counsel in the Court of Session, as well as in the sheriff court for those cases in which sanction for the employment of counsel is given. (Paragraph 55)

186. There should be a procedure for sanctioning the employment of a solicitor advocate in proceedings in the sheriff court. The fees of the solicitor advocate should be included in the judicial account as an outlay. The table of fees that we recommend for counsel should apply to solicitor advocates. (Paragraph 56)

187. We support the introduction of a power to award interest at the judicial rate on outlays from the date they are incurred. (Paragraph 57)

188. A tariffbased system for judicial expenses would be worthy of more detailed consideration. (Paragraph 65)

189. The cost of litigation should form part of the remit of the proposed Civil Justice Council for Scotland. Pending its establishment the Scottish Government should set up a Working Group on Judicial Expenses. In the meantime, the current judicial tables and their operation should be reviewed to address the concerns about recovery rates. (Paragraph 66)

190. The outcome of Lord Justice Jackson's review and whether, in the light of his recommendations, the rule that expenses follow success may require to be modified in this jurisdiction, are matters that should urgently be addressed by the Working Group on Judicial Expenses. (Paragraph 67)

Taxation

191. The offices of Auditor of the Court of Session and sheriff court auditors should be salaried posts, subject to the usual rules regarding public appointments. The status of the Auditor of the Court of Session as a member of the College of Justice should continue. Fees payable for extrajudicial taxations and assessments should be paid into public funds. (Paragraph 83)

192. For sheriff court auditors, commissions should be granted only to those holding qualifications as solicitors or law accountants and with relevant skills and experience. (Paragraph 84)

193. Greater use should be made of information technology so that taxations can take place by telephone or videoconference, with any necessary papers being filed with the auditor electronically. (Paragraph 85)

194. Small claims and summary cause assessments should be carried out by the sheriff court auditor, not by the sheriff clerk. (Paragraph 86)

195. The Auditor of the Court of Session should have a role as 'head of profession'. (Paragraph 87)

196. The Auditor of the Court of Session should have jurisdiction over taxations in actions raised in the allScotland personal injury court. (Paragraph 88)

197. Where a party wishes to recover counsel's fees, the account should be supported by detailed fee notes, disclosed to the paying party on request. If objection is taken to the reasonableness of counsel's fees, paying parties should specify what sum, in their view, would be appropriate. There should be a similar obligation where objection is taken to the fees payable to expert and other witnesses. (Paragraph 90)

198. The procedure in the Court of Session whereby specific points of objection require to be intimated in advance of the diet of taxation should be extended to the sheriff court. The period of notice, which at present is three working days prior to the diet of taxation, should be lengthened. (Paragraph 91)

199. It should be open to parties to agree elements of an account and to restrict the taxation to only those items of the account that are in dispute. (Paragraph 92)

Speculative fee arrangements

200. In view of the indepth reviews on costs and the operation of Conditional Fee Agreements currently underway in England and Wales, and the divergence of views as to whether introducing recoverability of success fees and After The Event premiums would improve access to justice, we consider it premature to recommend any changes to the current regime. This issue should be addressed as a matter of urgency by the Working Group on Judicial Expenses. (Paragraphs 125127)