By Susanne McGraw, solicitor with Watermans Accident Claims and Care
RAISING a civil action can be a daunting prospect for people who suffer an injury. Even when they have a perfectly legitimate claim, the thought of a lengthy legal process and the cost implications of this can be enough to put people off.
And that’s why new legislation put forward by the Scottish Government deserves to be commended. The Civil Litigation (Expenses and Proceedings) Bill aims to create greater access to justice by improving the way in which civil litigation is funded and administered in Scotland.
Though still in its infancy the bill is a clear attempt to level the playing field in “David v Goliath” court battles that occur regularly. This is because many people may not qualify for legal aid but will likely struggle to pay lawyers’ fees, whilst defenders are represented by insurers.
There are two key changes proposed in the bill. Firstly, the introduction of a Damages Based Agreement (DBAs) whereby a solicitor and their client agree upon a percentage of damages the solicitor will receive should an action be successful. This will regulate the fees solicitors can command if a case succeeds.
DBAs will benefit those unable to work after a serious injury as it allows solicitors to take forward a case on their behalf without having to secure legal aid first. DBA’s will make the total costs of litigation more predictable and such agreements will give pursuers peace of mind.
There is also a provision to cap percentage levels to stop unscrupulous solicitors attempting to get a higher amount of damages awarded than is reasonable in the circumstances. Again, this is a welcome step to instil greater confidence in individuals pursuing civil litigation.
At present in Scotland the losing party usually covers the legal expenses of the successful party but the second change proposed in the bill would alter this. The legislation suggests introducing qualified one-way costs shifting (QOCS), which means someone pursuing a personal injury claim would not have to cover the defender’s legal costs if the claim fails.
Solicitors have received criticism for only taking on cases conventionally viewed as having an obvious chance of success to the detriment of cases where the law is untested and underdeveloped. These reforms should redress that imbalance. QOCS would allow solicitors to take on cases where there is no immediate guarantee of success meaning a wider variety of cases could be heard in court.
However, solicitors will not litigate anything regardless of the chances of success. Cases will be reviewed so as not to waste the time of the courts, defenders or the pursuer as ultimately the pursuer’s solicitors have to bear their own costs of litigation.
The draft bill allows defenders to apply for a Decree of Expenses in cases where they believe the conduct of the pursuer “falls below the standards reasonably expected … in civil proceedings” and pass their costs back to the pursuer.
Greater clarity is required on how such standards will be measured. It is feasible that a defender could use an honest mistake or error by a pursuer or their solicitors to push for a decree. The standards must be high but the onus is on solicitors to be as extremely diligent.
Whilst parties such as insurers, who are often the defenders in civil litigation cases, may not welcome the bill, it provides clarity to everyone involved in a case on the expenses involved. It undoubtedly improves the funding options available to those who suffer a personal injury.
The author is an accredited specialist in personal injury by the Law Society of Scotland.
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