Creating an Accessible Civil Justice System for the people of Scotland
Taylor Review recommends far-reaching changes to the system of expenses and funding of civil litigation in Scotland.
ISSUED ON BEHALF OF THE TAYLOR REVIEW
A package of proposals to change the system of expenses and funding of civil litigation is being unveiled today following an independent review by the former Sheriff Principal of Glasgow and Strathkelvin, Sheriff Principal James Taylor.
The Taylor Review was commissioned in March 2011 by the then Minister for Community Safety, Fergus Ewing MSP. Sheriff Principal Taylor’s Report follows an extensive research and consultation process, supported by a review team and assisted by a Reference Group of practitioners and experts in the field of expenses and civil litigation.
The outcome is a thorough and meticulous Report which sets out a powerful case for radical and substantial changes to the system, and details 85 recommendations to put these into practice. In his statement launching the report, Sheriff Principal Taylor says:
“The key issue for me was how to improve access to justice in a meaningful way; in many cases, “meaningful” means being affordable for the private individual. However, access to justice is a wider concept. It embraces the ability for any legal persona, be they individuals or commercial enterprises, to have access to the courts in order to attempt to vindicate their legal rights. Obstacles to access to justice can extend beyond the issue of affordability. Recoverability and predictability of expenses can be just as important.”
Under the changes recommended by Sheriff Principal Taylor solicitors will be able to offer their clients “no win – no fee” agreements in terms of which their fee is calculated as a percentage of the damages recovered. The maximum percentage which can be deducted from damages in personal injury cases would be set on a sliding scale in which the percentage reduces as the award increases.
It is also recommended that a pursuer in a personal injury action should no longer run the risk of having to pay the defender’s expenses should the court action fail, except in very limited circumstances. This will remove the fear of individual pursuers having to pay a lot of money to the defender’s solicitors should they lose. Such a fear can result in good claims not being pursued.
Commercial enterprises are also entitled to access to the courts unobstructed by issues of recoverability and predictability. Recommendations are made to involve the judiciary in the management of the expenses of certain types of court action. In particular, pilots for commercial actions are recommended for the introduction of a system of expenses management and for the summary assessment of expenses. Such procedures should enable a commercial litigant to assess the benefits of proceeding with a litigation in the full knowledge of what the expenses might be should the litigation be won or lost.
It is said that barriers exist which prevent access to the courts. Sheriff Principal Taylor acknowledges these barriers but says:
“Court action is always going to be stressful for litigants. Much of the stress is a fear of the unknown: “Will I win my case and if I don’t, what will it cost me?” Apart from the success or otherwise of the action, the most significant unknown is the size of the legal bill which will land at the unsuccessful litigant’s door. I believe that the recommendations in this Report, if implemented, will go a long way to reduce that stress and thus remove barriers which presently deny access to justice for all.”
Sheriff Principal Taylor’s Report and his statement can be accessed through the following link http://scotland.gov.uk/About/taylor-review
The review of expenses and funding of civil litigation in Scotland was recommended by the then Lord Justice Clerk, the Rt. Hon. Lord Gill, in his report of the Scottish Civil Courts Review. Sheriff Principal Taylor, a member of the Board of the Scottish Civil Courts Review, was asked to conduct the review by the then Minister for Community Safety, Fergus Ewing MSP.
The Review held 57 meetings; eight meetings of the Reference Group; four public meetings; observed three meetings of the Lord President’s Advisory Committee on Solicitors’ Fees; undertook a fact finding visit to the Mercantile and Technology and Construction Courts in Birmingham to gather information regarding the costs management regime which was in place there; held meetings in London with representatives from legal firms, economists, legal expenses insurers, the Civil Justice Council, the Ministry of Justice, Professor Dame Hazel Genn, QC and Lord Justice Jackson; and carried out a public consultation which received 70 responses.