Faculty warns Scotland could be operating unlawful court fees regime

The Scottish government is consulting on proposals to increase court fees over the next three years.

In its response, the Faculty repeated the stance it has taken in previous consultations – that as a matter of principle, the civil justice system should be funded by the state, not litigants.

The Faculty said: “No part of our democratic society could function without our civil law being maintained by the operation of our courts. There is no warrant to shift the cost of the courts entirely onto litigants, when the whole of society benefits from them.

“The purpose of the fees regime is to avoid paying for the courts from general taxation. The principle underlying the fees regime is that the user pays. The moral and philosophical justification for this has never been explained. The Faculty of Advocates considers that it cannot be explained.”

Looking to last year’s UK Supreme Court ruling in Unison v Lord Chancellor, that employment tribunal fees were unlawful, the Faculty said the court had set out in the clearest terms why unimpeded access to justice was of vital importance to society at large.

The Faculty added: “The Consultation Paper notes that the UK Supreme Court held that fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice.

“That is no justification for a regime aimed at recovering the whole cost of the courts, or as much of the cost as possible, from litigants rather than the taxpayer.

“In fact, one can infer from the judgments in Unison v Lord Chancellor that the UK Supreme Court would be likely to find such a fees regime illegal and ultra vires.

“It should be noted that in Unison v Lord Chancellor there was no need for conclusive evidence that the fees in question had prevented people from bringing claims. It was enough to make a fees regime unlawful that there was a real risk that persons would effectively be prevented from having access to justice….Requiring litigants to pay court fees is likely to deter some individuals from pursuing legitimate actions.”