The Scottish government is currently consulting on proposals to increase court fees over the next three years – a two per cent rise during the financial year commencing in April this year with a further hike of two per cent in the next two financial years. In its response the Faculty reiterated that it still believed that as a matter of principle the civil justice system should be funded by the state and not by litigants.

Asked to comment on the operation of the fee exemptions system as it pertained specifically to access to justice for disabled litigants, the Faculty noted that this issue underscored the problem inherent in the system favoured by the government – that there were many people who could not afford to go to court. The level of court fees further exacerbated this issue, it said.

“The Faculty considers that unrepresented litigants are at a substantial disadvantage compared to represented ones. Those who cannot afford to pay for representation are best served by legal aid. Those who cannot obtain legal aid are best served by pro bono, speculative or third party-funded legal representation. All these groups are materially disadvantaged by the current levels of fees. The current fee exemption scheme does not help them.

“The Faculty considers that fee exemptions should not encourage parties to litigate in person. Rather, they should support those who have legal assistance pro bono.”

The Faculty also said it believed environmental cases within the meaning of the Aarhus Convention should be exempt from court fees.

“Environmental cases are one example of litigation in which individuals and groups seek to have the courts hold the executive to account in the public interest. While this is understandably regarded as an inconvenience, it is an important feature of a democratic society. Public interest is present in many challenges to government decisions. Even where a challenge to a government decision does not have a wider public interest, there is such an interest in the state being held in check and restrained from arbitrary exercise of power.

“Most, but not all such litigation is by way of judicial review. The Faculty would support an exemption for fees for lodging petitions for judicial review and reclaiming from refusal of such petitions. Failing such a blanket exemption, the Faculty favours including fee exemptions in the decision-making process of Protective Expenses Orders.”