Section One - Executive Summary
1.1 Court fees and fees for services offered by the Office of Public Guardian (OPG) ensure that those who make use of the civil courts and the services of the OPG meet or contribute towards the associated costs to the public purse, where they can afford to do so. The levels of court and OPG fees are prescribed by Scottish Ministers under statutory powers. Scottish Government's policy is to move towards fees being based on "full-cost pricing", i.e. court and OPG fees should generally be set at levels that reflect, on average, the full cost of the processes involved, with a well-targeted system of fee exemptions to protect access to justice.
1.2 Court and OPG fee levels were last consulted on in 2008 and three years of Fees Orders were implemented covering the period to end March 2011. In that last review, all fees were increased above the level of inflation in order to move cost recovery levels (then at 64%) closer to full-cost pricing. A copy of the previous public consultation can be found at http://www.scotcourts.gov.uk:80/CourtFees/Fee_Review_Consultation.pdf
By March 2011 cost recovery was at 79% for both court and OPG fees.
1.3 The previous consultation was concluded ahead of the publication in September 2009 of the Report of the Scottish Civil Courts Review1, prepared at Ministers' request by the Lord Justice Clerk, Lord Gill. Lord Gill's landmark Report recommended substantial changes to modernise and improve the structure and operation of Scotland's civil courts. In November 2010, Scottish Ministers published their response to the Review Report2, accepting the vast majority of its recommendations, including changes to jurisdiction limits between courts; simplified court procedures and a new judicial tier. Whilst some of the recommendations have already been implemented, the main recommendations require primary legislation. Ministers have confirmed that relevant legislative proposals will be brought forward as part of the wider cross-justice Making Justice Work improvement programme, starting with the establishment of a Scottish Civil Justice Council, as recommended by Lord Gill, to undertake the necessary review of civil court rules.
1.4 Full implementation of the proposed civil court reforms will result in a transformation in how civil justice in Scotland is delivered and will, therefore, take a number of years to complete. The proposals in this consultation for sheriff court and Court of Session fees are an interim measure to take account of inflation and further improve cost recovery. The Scottish Court Service Board has confirmed that the increase in cost recovery, above inflation, should be directed towards the costs of delivering improvements to the civil courts system. This will include investment in a new civil IT system and other technologies to modernise how people interact with the civil courts. The funds will also contribute towards the costs of the Scottish Civil Justice Council and the development of simplified and more effective rules for civil court procedures.
1.5 One of the key recommendations within Lord Gill's Report is that cases should be directed towards the appropriate level of court. In line with that aim, this consultation proposes that, alongside inflationary adjustments and a general cost recovery increase, cost recovery rates within the Court of Session, Scotland's highest civil court, should be increased to bring them in line with those in the sheriff courts. This is reflected in the proposals.
1.6 The following summarises the key proposed changes:
− Inflation increases - 5% from 1st November 2012 and 3% for both years from 1st April 2013 and 1st April 2014;
− An increase in the day rate for a proof, debate or hearing in a summary or misc. application in the sheriff court to better reflect actual costs;
− Hearing fees in the Court of Session to be increased to match with the cost recovery rate in the sheriff courts;
− A further general 1% increase in Court of Session and sheriff court fees to improve cost recovery to be directed towards the implementation costs of civil court reform and service improvement;
− Summary applications to the Justice of the Peace court for utility warrants to be charged a fee;
− The requirement that the court will only proceed with an action/writ if fees have been paid (or exemption claimed);
− Fees will be charged for Inner House court hearings that do not proceed if cancelled at short notice.
1.7 Other than the years 2 and 3 inflationary increases, subject to approval from Parliament, these proposals will be introduced in full later in 2012.
1.8 Office of Public Guardian and Accountant of Court fees already achieve full cost recovery. No above inflation increases are, therefore, being sought. The introduction of the on-line power of attorney application this year and other savings mean that a number of fees have either been held to current levels, reduced or no longer charged.