Scottish Government Decides That Civil Court Fees Do Not Impede Access To Justice; No Substantive Change To Court Fee Structure

On 26 February, the Scottish Government published the outcome of its consultation on Scottish Court Fees - that is, the fees which parties must pay to the courts to bring or defend a court action. You could be forgiven for assuming that this was a dry and uninteresting review of rather mundane matters. However that assumption would be wrong. The consultation considered the principles which underpin the funding of the civil courts in Scotland and the extent to which access to justice is impeded by the current fee structure. These are topics closely allied to those being considered by the Scottish Government in the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill 2017. Indeed responses to the Fees consultation focused on some of the same issues which have been raised in relation to the Bill.

Should the Scottish Court System be funded by users or by the state?

Some of those who responded to the Consultation Paper suggested that the civil court system provides a public good with a reach wider than its immediate participants. They argued that the courts should provide a fully funded public service; supported by the taxpayer and free to the user. The Scottish Government rejected this argument, concluding that the private benefit to litigants was such that they should continue to fund the system. In reaching that conclusion the Government noted that it was necessary to limit "demands on the public purse" and there was some subsidy of civil claims by way of fee exemption and Civil Legal Aid.

Access to justice

In the consultation document the Scottish Government stated that "maintaining access to justice must be a paramount consideration".

Many respondents argued that the fees were an impediment and should be abolished altogether in civil courts. Those respondents relied upon Unison v Lord Chancellor 2017 UKSC51 to support their argument. In that case the Supreme Court concluded that the fees charged by the Employment Tribunal were an unlawful barrier to access to justice. This decision was referenced many times in the oral evidence given in relation to the Civil Litigation Bill. Those making the references relied upon the decision to support the view that civil court fees deter...