Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill

The Civil Litigation (Expenses and Group Proceedings)(Scotland) Bill was introduced yesterday and the Bill has been published online today. Click here to read the bill.

The Bill is largely as anticipated. It makes provision for success fee agreements, with the power to cap success fees by regulation. It is intended that the power will be used to set the maximum amount of the success fee as a percentage of the damages and will be based on a sliding scale depending on the size of the damages payment.

Group litigation is to be introduced in the Court of Session in Scotland and rules are to be drafted which will determine procedure, including a potential gateway permission test by the Court.

The auditors of the Court of Session, Sheriff Court and Sheriff Appeal Court are to become salaried employees of the Scottish Courts and Tribunal Services. The Auditor of the Court of Session is to issue guidance to the other auditors about the exercise of their functions.

Of particular interest are the provisions relating to qualified one-way costs shifting (QOCS). In personal injury and fatal cases, the court must not make an award of expenses against the pursuer where they have conducted proceedings in an “appropriate manner”. The conduct is inappropriate where a person makes a fraudulent representation, where there is an abuse of process, and where the behaviour falls below the standards reasonably expected of a party in civil proceedings. The Bill clarifies that this only applies to the personal injury element of a claim. The qualifications of QOCS are bound to give rise to satellite costs litigation in Scotland.

The Bill will be assigned to Committee shortly and Keoghs will be monitoring closely.

For more information please contact:

David Hennessy
Partner
T: 0141 238 0068
E: dhennessy@keoghs.co.uk

Emily Jeffrey
Partner
T: 0141 238 0069
E: ejeffrey@keoghs.co.uk

Douglas Cowan
Partner
T: 0141 238 0070
E: dcowan@keoghs.co.uk