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Consultation on Expenses and Funding of Civil Litigation Bill

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Background to Taylor and Gill Reviews

The Gill Review

9. The Rt Hon Lord Gill's Report of the Scottish Civil Courts Review ("SCCR"), published in September 2009, set out the most comprehensive programme of reform of the civil courts in generations. The remit of Lord Gill's Review was to review the provision of civil justice by the courts in Scotland, including their structure, jurisdiction, procedures and working methods, having particular regard to:

  • the cost of litigation to parties and to the public purse
  • the role of mediation and other methods of dispute resolution in relation to court process
  • the development of modern methods of communication and case management
  • the issue of specialisation of courts or procedures, including the relationship between the civil and criminal courts

10. The Scottish Government accepted the vision provided by Lord Gill and broadly accepted the detail of his recommendations. A range of work was taken forward to implement the recommendations. First of all, the Scottish Civil Justice Council[3] was established with the remit of preparing draft rules of procedure for the civil courts and advising the Lord President on the development of the civil justice system in Scotland. Since then, the Courts Reform (Scotland) Act 2014[4] has been enacted which will both enhance the role of the sheriff court and introduce a number of mechanisms which will give judges in both the Court of Session and sheriff court enhanced powers of case management.

11. During the course of the Lord Gill's deliberations, Lord Justice Jackson was appointed to undertake a fundamental review of the rules and principles governing the costs of civil litigation in England and Wales. Lord Gill took the view that what might be recommended in England and Wales could have considerable implications for the conduct of litigation in Scotland. Accordingly, it was decided that the SCCR would not address the issue of litigation expenses in detail and Lord Gill recommended that a separate review should be undertaken.

The Taylor Review

12. On 4 March 2011, the Minister for Community Safety asked Sheriff Principal James Taylor to undertake a Review of the Expenses and Funding of Civil Litigation in Scotland ("the Taylor Review").

13. The resulting report by Sheriff Principal Taylor is inextricably interlinked with the SCCR and is to be seen as a continuation of that work; indeed the review was carried out on the assumption that Lord Gill's recommendations, which form the basis of the Courts Reform (Scotland) Act 2014, would be in place.

14. Sheriff Principal Taylor presented his Review of Expenses and Funding of Civil Litigation in Scotland report to the Cabinet Secretary for Justice in September 2013. The report contained 85 recommendations, aimed at delivering greater predictability and certainty in relation to the cost of litigation, thereby increasing access to justice. There is a welcome focus on opening out to the "excluded middle" who don't qualify for legal aid and are unable to fund their litigation privately, and the review highlighted the difficulty where, in general terms, people either have to be poor enough that they qualify for legal aid or so rich that the costs do not matter. As that leaves many people, indeed potentially the majority of the population, feeling shut out from the legal process, it is important that this issue is addressed.

15. Since receiving Sheriff Principal Taylor's report, the Scottish Government has scrutinised the findings and recommendations and had informal discussions with key stakeholders, particularly those who have a role to play in implementing the recommendations. These discussions have continued as we work in partnership with others such as the Scottish Civil Justice Council, the Faculty of Advocates, the Law Society of Scotland and the Scottish Legal Aid Board to implement some aspects of the recommendations, and further consider others. We also convened a Taylor Short Life Working Group of stakeholder representatives to assist in considering the review recommendations and developing policy.

Scottish Government Response to the Taylor Review

16. The Scottish Government Response (June 2014)[5] set out our views in relation to how Sheriff Principal Taylor's report should be implemented and a commitment to draw together a range of partners and activity across the justice system to take forward the recommendations.

17. The response divided the implementation of Sheriff Principal Taylor's recommendations into three distinct categories:

(i) Chapters 2-4 (cost of litigation.) The recommendations in these chapters are for the Lord President and the Scottish Civil Justice Council to take forward by court rules.

(ii) Chapters 7-9 (speculative fee agreement, qualified one way costs shifting and damages based agreements. ) The Scottish Government set out its intention to implement these recommendations through primary legislation as a package.

(iii) The Scottish Government also set out how it intended to deal with the rest of the report namely chapter 10 (referral fees), chapter 13 (regulation), chapter 5 (protective expenses orders), chapter 6 (before the event insurance), chapter 11 (alternative sources of funding) and chapter 12 (multiparty actions.)

18. The response indicated that the Scottish Government viewed Sheriff Principal Taylor's recommendations in relation to damages based agreements, speculative fee agreements and qualified one way costs shifting as being the lynchpins of the report as they are key to increasing access to justice for the general public.

Making Justice Work

19. The Scottish Government's implementation of Lord Gill's and Sheriff Principal Taylor's reforms is a key element of the Making Justice Work Programme, established to deliver a major reshaping of the structure and practice of our civil and criminal justice system. The reforms proposed for this Bill will contribute by ensuring there is sustainable, effective access to justice for both publicly funded and private clients.