The Scottish government has agreed to a series of civil justice reforms aimed in part at stopping litigants de-camping to England and Wales.
The government today announced it has accepted the recommendations of Sheriff Principal Taylor (pictured) for the funding of litigation.
Among the adopted proposals are damages-based agreements (DBAs), new rules for speculative fee agreements and qualified one-way costs shifting (QOCS). Solicitors should also be entitled to retain judicial expenses in addition to agreed success fees.
Announcing the changes, the Scottish government was clear that its motivation was in part preventing litigants issuing proceedings south of the border in search of more favourable funding conditions.
The government response said: ‘It is accepted that lower levels of recoverability in Scotland may contribute to litigants raising proceedings in England and Wales and that this has potentially negative consequences for the Scottish economy as well as for the development of Scots law.’
The introduction of damages based agreements and the adjustment of the rules relating to speculative fee agreements will require primary legislation. The Scottish government said it considers that QOCS should also be introduced by primary legislation to ensure that the reforms can take place as a package.
The government will also consider the question of whether claims management companies should be regulated as part of a wider review of legal services regulation.
In contrast to the position taken by Lord Justice Jackson for England and Wales, Taylor did not recommend that referral fees be banned, preferring instead that those involved in paying and receiving referral fees be properly regulated.
Justice secretary Kenny MacAskill said the recommendations will go a ‘long way to making the Scottish civil litigation system much more accessible to the people of Scotland’.
He added: ‘The current situation where the unpredictability of costs represents a barrier to justice is not acceptable. We intend to introduce primary legislation at the earliest opportunity.’