I will turn that slightly on its head and look at it from the perspective of the motivation for amendments 11, 64 and 16, which is concern about access to justice. We all share that concern.
The most likely scenario for personal injury actions is that they will be done under success fee arrangements. In such circumstances—as Liam McArthur pointed out—the solicitor takes the hit in that they take on the obligation to pay up-front fees, including court fees. In terms of the barriers to justice that there have been concerns about, it is difficult to see how that will impede a person who is pursuing a personal injury action.
On Liam McArthur’s point about recovery, court fees are currently paid on a pay-as-you-go basis, which helps to resource the work of the Scottish Courts and Tribunals Service, as it said in its letter to the committee. If we take away that on-going resource, we will have a problem. At the end of the day, seeking to recover might look easy on paper, but it might prove not to be practicable in every single case, for whatever reason.
The pay-as-you go system means that the money is going into the court service. If we were to take that away, we would take away a big part of the Scottish Courts and Tribunals Service’s budget. That point is made in the relevant documentation about the fees instruments that the committee will consider shortly. The instruments look at the potential negative impact and possible shortfall for the operation of the Scottish Courts and Tribunals Service, which could run to £30 million-plus over the piece. That is a not insignificant budget item.
I understand the motivation for the amendments in the group, but bear in mind that the amendments are intended to cover personal injury actions and such cases will most likely benefit from success fee agreements. Therefore it is the solicitor that will, as part of the package, take on the onus of paying all fees, including court fees.
On the budgetary implications, if there were to be a gap in the budget of the Scottish Courts and Tribunals Service, it would ask central Government to fill it. Under the current financial budgetary constraints, if the service were to look for money from the justice portfolio to fill that gap, something else in the justice budget would have to give: there is not an infinite amount of money available.
Members have referred to the letter that the Scottish Courts and Tribunals Service sent to the committee about the impact that it, as the organisation that operates the system, says that such a move would have, and the fear of the unintended consequences of the amendments in the group.
On the procedural aspect, the service recommended use of secondary legislation on management of fees in order to retain the current flexibility and accessibility to a wider audience.
For those reasons, I respectfully ask Daniel Johnson to seek to withdraw amendment 11 and not to move amendment 16.
John Finnie’s amendment 64 would mean that a pursuer who had the benefit of QOCS would not be liable for court fees at all. I consider amendment 64 to be unnecessary. If a pursuer has the benefit of QOCS, they are liable to pay only the success fee at the end of the case, but only if they win.
As I said, it is the responsibility of the solicitor, not the pursuer, to pay up front all other expenses, including court fees. It is not clear to me why a substantial benefit should be provided to them when that benefit would come at a substantial cost to the Scottish Courts and Tribunals Service and, ultimately, the taxpayer.
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In addition, I say that exemptions from civil court fees are best made in the body of court fees orders, in line with the existing enabling power in section 107 of the Courts Reform (Scotland) Act 2014. The new fees instruments that I mentioned include new additional exemptions that will be particularly relevant to women who seek civil protection orders for domestic abuse.
Therefore, although amendment 64 is well intentioned, for the reasons that I have set out at some length—I thought it important to do so—I believe it to be unnecessary and potentially harmful to the funding of the Scottish Courts and Tribunals Service, so I ask Mr Finnie to not move it.