Exclusive: Sheriff Court fee increases ‘inimical to access to justice’
Inflationary increases in civil court fees have been condemned by lawyers as being “inimical to access to justice” as they impose a “substantial burden” on litigants with average incomes and are based on the principle of full cost recovery, which has been discredited by the Supreme Court.
Sheriff Court fees are due to be increased by two per cent on 1 April this year. This comes in the wake of a 2.3 per cent increase a year ago, and will be followed by a further two per cent increase next year.
Speaking to Scottish Legal News, solicitor advocate Andrew Stevenson, president of the Glasgow Bar Association, said the GBA opposes these increases as they are inimical to access to justice and are fallaciously based on the notion of full cost recovery.
Mr Stevenson said: “Inflation-linked annual rises in court fees may seem harmless but they are a manifestation of a misconceived and debunked policy adopted by the Scottish government – namely that of making full cost recovery in the civil courts.”
The source of these major increases, he explained, was the Sheriff Court Fees Amendment Order 2008, an executive note which provides that because litigants are the main beneficiaries of the resolution of a conflict, it is “unreasonable” to ask taxpayers to pay for court fees.
But these “ever rising charges present a substantial burden of outlays to those on average incomes,” he said.
A Sheriff Court Ordinary Cause proceeding to a two-day proof would cost a pursuer £741 in court fees at the beginning of 2018. After, 1 April 2020, however, this figure will rise to £788.
In 1993, unless the case proceeded as far as a taxation of expenses, the only court fee payable by a litigant was £26.
Mr Stevenson noted also that the “Scottish government appears to disregard the fact that the principle behind its policy of ‘full cost recovery’ was discredited in 2017 by the UK Supreme Court” in UNISON v Lord Chancellor, in which Lord Reid said it was incorrect to assume “that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the ‘users’ who appear before them, and that the provision of those services is of value only to the users themselves”.
The GBA president said: “In light of the UNISON case taxpayers should indeed be asked and expected to fund our civil court system, as they were prior to 2008 and in 1993.
“Many clients of GBA members feel a sense of having been wronged even before they reach court. They should not then face what may feel like a stealth tax on their misfortune.”
Jim Stephenson, convener of the Law Society’s Access to Justice Committee, told SLN: “We do not support the Scottish government’s policy of meeting the cost of court proceedings from litigants and it remains our view that moves towards full cost recovery should be resisted.
“A properly funded court system is an essential part of our civilised society and respect for the rule of law, and it is in the public interest to maintain a robust and respected system for resolving disputes.
“It is the proper responsibility of the state to fund that system. Inflation increases costs and an effective, technologically capable court service requires investment, but with civil litigation across Scotland having declined by 44 per cent between 2008-09 and 2016-17, we believe that full cost recovery risks placing increasing costs on a decreasing number of court users.
“Maintaining access to justice against this backdrop is crucial, and a consideration of how the state funds the infrastructure of justice important.”
A Scottish government spokesperson said: “The most recent increases in court fees were modest, amounting to no more than inflation. At the same time as increasing fees, exemptions were maintained for those on low incomes and extended to particularly vulnerable persons such as victims of domestic abuse.
“Whilst fees are never popular, the Scottish government believes that those court users who can afford to do so should contribute to the cost of maintaining the civil justice system.”