Justice for All?
The general consensus is that litigation is a costly process, where the uncertainty as to the precise costs which an individual may face when the dust has settled puts too many off from pursuing valid and legitimate claims.
Whilst clients generally pay their solicitors’ legal fees based on agreed terms and conditions, these do not mirror the costs which are recoverable by the successful party in any litigation process. All that may be recovered in Court are judicial expenses which are set out in a table under an Act of Sederunt. The economic reality is that successful litigants in Scotland might only recover around 60% of their actual costs expended. In England, the recovery rate is closer to 80%, therefore making the process across the border more attractive, although overall expenditure for solicitors and barristers, particularly in London, potentially can be much higher.
Perhaps the greatest difficulty faced in litigation is in predicting what the opponents’ costs may be. Within the present litigation framework, there is no requirement for parties to give their opponent a cost estimate at any stage during Court proceedings, either in the Sheriff Court or the Court of Session in Edinburgh. Accordingly, if a litigant loses his action and is held liable to meet his opponents’ costs, he could find that there are (fees for expert witnesses, reports, etc.) which were simply not anticipated.
The Taylor Review (Scotland) has been set up to address these problems and is presently considering options following a consultation process.
There are also proposed changes in England and Wales under the terms of Lord Justice Jackson’s Review on Civil Litigation Costs. He identified the need for justice to be accessible to all and sensitive to the needs of the parties. The relevant finances and resources of each party are to be taken into account and early resolution of disputes is being encouraged.
In a recent pilot scheme in Birmingham, Judges there have been requiring parties to provide an estimate of their costs, both at the outset and then during key points throughout the litigation process. That helps the individual by creating certainty in the litigation process.
Civil Legal Aid for funding of Court actions appears to be open to very few within the qualifying financial level. Together with this is the limited number of lawyers prepared to work for Legal Aid rates, which fall well below both the national average and the scale judicial fee levels.
Before the event (BTE) and After the event (ATE) insurance premiums are potentially attractive, but such policies do not always allow the litigant freedom to choose his own solicitor.
The impact of no win no fee claims companies has certainly encouraged the growth of speculative actions, but the percentages which these companies may take in the event of success is unregulated and there is a risk that litigants may not always get the best deal from same.
Lawyers who provide a speculative fee arrangement have seen an increase in business, but the Taylor Review will require to address how such agreements are regulated.
It will be interesting to see what recommendations Sheriff Principal Taylor ultimately makes for Scotland and how far these are then implemented, but the process is to be welcomed and can only improve matters.
Watch this space!
For more information, please contact Martin Sinclair.