A sheriff principal has said he included future loss in the calculation of the success fee in his review of the civil litigation costs regime because to exclude it would, among other things, incentivise delay.
Holyrood’s Justice Committee took evidence on the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill recently.
The bill proposes changes to the funding regime for personal injury litigation with a view to improving access to justice.
Lawyers have commented, however, that the bill may have the unintended consequence of leading to greater inequality between claimants and defenders.
Sheriff Principal Taylor who authored a report preceding the bill gave evidence to the committee.
In response to Rona Mackay MSP’s question why Sheriff Principal Taylor recommended not to protect damages for future loss from inclusion in the success fee calculation in the majority of cases, the sheriff principal replied that the public enter into such agreements because they are “simple, they understand them and they know precisely what the outcome is going to be”.
“I included future loss in the calculation of the success fee because to do otherwise provides an in-built incentive to solicitors to delay proceedings. The longer someone waits to get their decision, the greater their past loss will be and the smaller the future loss will be. We do not need incentives for delay.
“Further, it is usually the tricky cases that proceed to court. Very often, future loss is the sticking point that prevents a settlement from occurring. It is at that point that the solicitor and the lawyer—counsel are usually involved if it is in court at that level—start to earn their corn. I think that they are entitled to be rewarded for that work.”
He added that future loss was excluded from the costs regime in England and Wales as a result of lobbying by pursuers’ solicitors’ groups, a point made by Lord Justice Jackson, who authored a similar report south of the border.