Jade Blair

I find that the grammar fiend in my laptop has boldly underlined my use of “outwith” in the above heading indicating that it is a “Scottish Preposition”. “And your problem is?” says I, breaking with other grammatical conventions.

We have a similar issue with the normal terminology used in Scotland when dealing with an award of judicial expenses. Whereas in England, an award is referred to as an award of “Costs”, we call it an award of “Expenses”. When an English court considers the “disbursements/expenses” of an award they are looking at matters such as court dues and payments to other stakeholders such as expert witnesses. We call those matters “outlays” preferring to reserve the term expenses to cover the generic award made by a court in favour of a successful litigant. It does not stop there in that a document presented for assessment south of the border is referred to as a “Bill of Costs”. In Scotland we refer to it as an “Account of Expenses”. This must not to be confused with a Business Account which is the term reserved for a detailed accounting between solicitor and client. In England, the Bill of Costs is “filed” whereas in Scotland the corresponding Account of Expenses is “lodged”. In England, it is “assessed” whereas in Scotland it is “taxed” although, just to further confuse matters, at lower court level such as in Simple Procedure/Summary Cause we call it an assessment.

In most jurisdictions with a legal system that has its foundations in English law, a successful party may have an expectation that they will be found entitled to “Costs”. There is a general understanding that such an award entitles the successful party to seek to recover their reasonable legal “Costs” from the unsuccessful or “paying party”. Not so in Scotland where we use the term “Expenses” to cover the broader award and where the relative rules of court made no mention of the word “Costs” until recently – more on that later. If the difference stopped there then it would not be too difficult for the layperson to understand. Where the complication arises is that the two jurisdictions then borrow the generic terms used by the other to further define an award in the respective jurisdictions and assign them to some of the ancillary matters.

In Scotland, when we make reference to the “Cost” we are actually talking about the cost to the paying client, that is to say the sum that they will require to pay their own legal team for services provided. Much of the architecture of the current “expenses” system in Scotland owes its existence to the “Review of Expenses and Funding of Civil Litigation in Scotland” presented by Sheriff Principal Taylor in 2013. The final report is a weighty document containing a total of 85 recommendations and it addresses both the issue of recoverability of expenses and also what it describes as the “Funding of Legal Services”, essentially the cost of provision of all legal services and who pays for them.

The ‘Costs and Funding Committee’ of the Scottish Civil Justice Council has taken a number of conclusions forward, both in relation to the “Taylor” recommendations and also those in the earlier report by Lord Gill. However, in addition to looking at issues concerning “expenses” the CAFC also considers the potential ramifications for those who are funding litigation and the ‘cost impact’. Thus, when we talk about “Cost” in Scotland this is not synonymous with “Costs” in most other English-speaking jurisdictions. When we talk about “Expenses” we are referring to the sum of money that is recoverable in terms of a court (judicial) award of expenses or an award agreed extra-judicially between parties. Such an award looks at the total expense that would be incurred in reasonably conducting proceedings to a successful conclusion in a Scottish Court and is the equivalent of the use of the word “Costs” elsewhere.

That’s pretty straightforward then, when we say ‘Expenses’, our colleagues south of the border say ‘Costs’. When we say ‘Cost’, they say ‘Client liability’. When we say ‘Outlays’, they say ‘Disbursements’. Except that when researching this article, I started to question just how pure and original our terminology is here in Scotland and in particular the assertion that we do not use the term “Costs”. Although true in the context of our Rules of Court and regulatory guidelines, the use of the term “Costs” when referring to a liability for expenses does appear to be creeping into common parlance. Perhaps the justice secretary was referring to ‘Cost’ rather than ‘Costs’ in his foreword to the Taylor Review in 2013 although he does appear to lapse from the singular into the plural without any obvious explanation.

Possibly the aforementioned ‘Costs and Funding Committee’ should properly be called the ‘Cost and Funding Committee’ but again this may just be a matter of style. However, surely there can be no doubt that in SSI 226 of 2021 the reference to Qualified One Way Costs Shifting (QOCS) is a reference to the obligation of a defender to meet the pursuer’s judicial expenses. Although the body of the rule change consistently refers to “expenses”, the instrument has been given the somewhat unwieldy title of Act of Sederunt (Rules of the Court of Session 1994, Sheriff Appeal Court Rules and Sheriff Court Rules Amendment) (Qualified One-Way Costs Shifting) 2021. Perhaps this is a concession to the international use of the terms QOCS to define what this rule change is designed to achieve. Either way, it is understandable that those who practice outwith or should I say beyond these shores, now struggle to understand what we mean in Scotland when we refer to an award of expenses.

Jade Blair is a law accountant at Hamilton Mullan Law Accountants Ltd.