Olivia Keenan | Trainee Solicitor

Unlawful Court Fees in Scotland?

The Scottish Government is currently consulting on proposals to increase court fees over the next three years. An increases of 2.3 per cent is planned for April, followed by further two per cent rises in April 2019 and 2020, which the government claims are needed to ensure the fees cover the cost of the civil justice system. In its consultation on the plans, the government argued that court users should meet or contribute to the cost to the public, if they can afford to do so, to reduce the “burden” on the taxpayer.

The Faculty of Advocates has written to the Scottish Government opposing their plans, suggesting Scotland could be operating an illegal regime of charging litigants court fees at a level designed to fund the civil justice system. The Faculty of Advocates has been opposed to the fees since their introduction and claims that as a matter of principle, the civil justice system should be funded by the state, not litigants. In its consultation response, the faculty states:

“No part of our democratic society could function without our civil law being maintained by the operation of our courts. The whole of society benefits from the maintenance of the court system and there is no reason why only those who use the court system should pay for it.”

The faculty highlighted the successful appeal of Unison v Lord Chancellor against fees for employment tribunals, which were found to be unlawful because of their effect on access to justice. The Faculty said the court had set out in the clearest terms why unimpeded access to justice was of vital importance to society at large.

“The Consultation Paper notes that the UK Supreme Court held that fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice. That is no justification for a regime aimed at recovering the whole cost of the courts, or as much of the cost as possible, from litigants rather than the taxpayer. In fact, one can infer from the judgments in Unison v Lord Chancellor that the UK Supreme Court would be likely to find such a fees regime illegal”

The faculty also raises concerns that the fees regime could deter people with legitimate claims from bringing them to court. They again note the case of Unison v Lord Chancellor, in particular the fact that there was no need for conclusive evidence that the fees in question had prevented people from bringing claims.

“It was enough to make a fees regime unlawful that there was a real risk that persons would effectively be prevented from having access to justice. Requiring litigants to pay court fees is likely to deter some individuals from pursuing legitimate actions.”

The government continue to consult on matters and we will be watching with interest to see what decision is made in light of the faculty’s recent criticisms.

We at Jackson Boyd are happy to provide you with up-to-date advice and assistance in respect of civil court fees, and how these potential changes may affect you in any future court action. Please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.

Olivia Keenan

Olivia Keenan

Dispute Resolution Team

Olivia is a trainee solicitor with Jackson Boyd. She commenced her traineeship with the firm in 2017

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