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Consultation on Expenses and Funding of Civil Litigation Bill

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Glossary of Terms

Act of sederunt

Type of delegated legislation passed by the Court of Session to regulate civil procedure in the Court of Session, the Sheriff Court and administrative tribunals, and published as statutory instruments.

After the event insurance

Insurance by one party against the risk of having to pay an opponent's judicial expenses, where the insurance policy is taken out after the event giving rise to court proceedings.

Agent and client expenses

Expenses assessed at taxation on the basis of all of the expenses reasonably incurred by a solicitor in the protection of his client's interest in a litigation. A broader basis than "party and party" expenses, which are what is usually recoverable by a successful litigant. Further divided into the more generous "agent and client, client paying" basis and the narrower "agent and client, third party paying" basis.

Before the event insurance

Insurance that was in place before the occurrence of the event giving rise to the court proceedings. The insurance covers the legal fees of the insured, and may also cover an opponent's expenses (in the event of the insured being ordered to pay their opponent's expenses).

Conditional fee agreement ("CFA")

An agreement between lawyers and their clients in England and Wales, by which lawyers are paid a success fee in the event of the client's claim succeeding. Success fees are calculated as a percentage of lawyers' legal fees and not on the amount recovered by the client.

Costs capping

A mechanism whereby judges impose limits on the amount of future costs that a successful party can recover from the losing party.

Costs shifting

The ordering that one person is to pay another's expenses. Costs shifting usually operates on a "loser pays" basis, so that the unsuccessful party is required to pay the successful party's recoverable expenses.

Damages

A sum of money awarded by a court as compensation for a wrong or injury.

Damages based agreement ("DBA")

An agreement under which a lawyer's fee is calculated as a percentage of their client's damages if the case is won, but no fee is payable if it is lost. Commonly referred to as a contingency fee agreement.

Dominus litis

A person who has an interest in the subject matter of the litigation and, through that interest, controls and directs it.

Legal expenses insurance

Insurance that covers a person against his or her own legal fees, including disbursements, and/or the expenses of an opponent in litigation. Legal expenses insurance includes both before the event ("BTE") and after the event ("ATE") insurance.

Legal Person

A body of persons corporate or unincorporated, or a partnership constituted under the law of Scotland.

Multiparty action ("MPA")

An action where a number of potential litigants have closely related or similar claims.

"No win no fee"

An agreement between a client and a lawyer that the lawyer will only be entitled to payment should the client be successful. In Scotland such agreements are usually in the form of speculative fee agreements.

One way costs shifting

A regime under which the opponent pays the pursuer's expenses if the action is successful, but the pursuer does not pay the opponent's expenses if the action is unsuccessful.

Party and party expenses

The usual basis for the assessment of recoverable expenses, calculated according to prescribed tables of fees. The amount of expenses allowed on this basis is invariably less than would be charged by a solicitor to his or her own client, or the amount which would be allowed on an "agent and client" basis.

Pro bono

Provided free of charge.

Protective expenses orders

A court order which limits a litigant's liability to pay the expenses of a successful opponent to a particular sum.

Qualified one way costs shifting ("QOCS")

A one way expenses shifting regime that may become qualified in certain circumstances, such as where the pursuer has acted unreasonably, or where the resources available to the parties are grossly unequal.

Review of Civil Litigation Costs

A fundamental review of the rules and principles governing the costs of civil litigation in England and Wales, conducted by Lord Justice Jackson in 2009. The Review of Civil Litigation Costs: Final Report was published in December 2009.

Scottish Civil Courts Review ("SCCR")

Review of Scotland's civil courts, chaired by the Rt Hon Lord Gill and concluding in the publication of The Report of the Scottish Civil Courts Review, Volumes 1 and 2 in September 2009.

SLAB

The Scottish Legal Aid Board.

Small claims procedure

Civil procedure in Scotland for payment, delivery, repossession and implement of obligations, where the value of the claim does not exceed £3,000.

Sisted case

Court case which is delayed or suspended.

Speculative fee agreements ('SFA')

An agreement between lawyers and their clients in Scotland by which clients are only required to pay legal fees if the litigation is successful. Should they be unsuccessful, clients may still be liable for the expenses of their opponents.

Success fees

Fees that may be paid by successful parties to their lawyers following a speculative fee agreement (Scotland) or as part of a conditional fee agreement (England and Wales). Success fees are calculated as a percentage of legal fees, and not on the amount recovered by the client.

Summary cause procedure

Civil procedure in Scotland for monetary claims above £3,000 but not exceeding £5,000.

Tables of Fees

Tables that regulate the amount of solicitors' fees for litigation which may be recovered as judicial expenses.

Taxation

The scrutiny of a successful party's expenses in litigation by an auditor of court.

Tender

An explicit, unqualified and unconditional offer by the defender to pay the pursuer in settlement of an action a specified amount, together with the judicial expenses to date.

Wednesbury unreasonable

A reasoning or decision is Wednesbury unreasonable (or irrational) if it is so unreasonable that no reasonable person acting reasonably could have made it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223). The test is a different (and stricter) test than merely showing that the decision was unreasonable.