Increased Access To Justice: The Civil Litigation (Expenses and Group Proceedings)(Scotland) Act 2018 and what it means for you

On 1st May 2018 the Scottish Parliament passed the Civil Litigation (Expenses and Group Proceedings)(Scotland) Act 2018, receiving Royal Assent on 5th June 2018. This Act is the result of a review into the funding of civil litigation in Scotland by Sheriff Principal Taylor in 2013.  His review concluded that more needed to be done to increase access to justice for the average person.

This Act works to increase access to justice in civil actions by:

• making the costs of civil court action more predictable;
• increasing funding options for pursuing civil actions such as personal injury, employmentment, and commercial actions; and
• introducing a greater level of equality to the funding relationship between pursuers and defenders in personal injury actions.

How will this change how we work?

In Scotland, court actions have traditionally been funded through either private funding, legal aid, trade union funding or - more recently - through so-called “no win, no fee” arrangements.  With increased pressure on legal aid, the funding available for civil claims has declined, so as a result, “no win, no fee” arrangements have increased. However, even with funding available to the average person seeking damages, there has always been the risk that they would become liable for a defending party’s legal costs if their case failed.  This prospect of facing a bill of thousands of pounds in such costs deterred many individuals from pursing compensation claims. The act seeks to change the way Court actions are funded.

Why make this change?

For the Scottish Government, it’s clear; in addition to providing a more secure basis of funding for claims, the Act will also introduce Qualified One-Way Costs Shifting (QOCS) for personal injury actions. This means that, as long as proceedings have been conducted in an “appropriate manner”, a pursuer will no longer be liable for a defender’s cost in the event of an unsuccessful personal injury claim,  QOCS will not apply however if a claim is found to be fraudulent, if a pursing party has behaved in a way which is manifestly unreasonable in connection with the claim or proceedings or, otherwise, conducts the proceedings in a manner that the court considers to be an abuse of process.

What does this mean for you?

Although the Act came into force in June 2018, the parts of the legislation relating to funding measures and court costs are currently being consulted upon by the Scottish Civil Justice Council.  Once legislation is enacted these parts will come into force (expected to be towards the end of 2019) . This will mean that pursuers, as long as their claim is genuine and conducted appropriately, will face less financial risk when claiming for injuries caused by the negligence of another.  This will result in a greater equality in the bargaining positions between an injured individual and the negligent party who are, almost always, financially backed by an insurance company.