1 CONSUL TATION RESPONSE TO THE EXPENSES AND FUNDING OF CIVIL LITIGATION BILL THOMPSONS SOLICITORS & SOLICITOR ADVOCATES DEDICATION I KNOWLEDGE I STRENGTH
2 Introduction Thompsons Solicitors are a specialist personal injury law practice. We represent victims of all accidents, injuries and disease. In particular, we are instructed in relation to a large number of work related accidents and disease claims each year. We represent victims of road traffic accidents. We pursue the majority of asbestos related lung disease claims which are pursued through the courts in Scotland each year. Weare a significant user of the Scottish court service. We have vast experience of litigation at the Court of Session and Sheriff Court. Our in-house Solicitor Advocate regularly appear on behalf of our clients. We are instructed by various different organisations under differing funding models including Trade Unions, legal expense insurers, charities and members of the public directly. We therefore have a deep understanding of the court process and the impact expenses and funding of civillitigation can have upon access to justice. We welcome the opportunity to respond to this important consultation. We shall response to the questions which are of the importance to our clients and how expenses and funding of civil litigation impacts upon their rights and access to justice. Speculative Fee Agreements - Questions 1-5 (inclusive) We generally support the introduction of speculative fee agreements on the basis set out in the consultation document and Sheriff Principal Taylor's review. We believe that they will improve access to justice. We, however, believe that damage based agreements are a more effective mechanism and are the means by which we shall fund our client's cases and we shall therefore provide a more detailed response to that section of the consultation documents and the section on QOCS which we consider to be of particular importance in respect of improving access to justice and re-balancing and redressing the asymmetrical relationship which currently exists between defender and insurers and pursuers as highlighted and described in Sheriff Principal Taylor's report. Damage Based Agreements Question 6: Do you think that the inability in Scotland to enter into damage based agreements with their clients prevents I potential pursuers of actions from obtaining access to justice? i The current expenses and funding of civil litigation model is such that defender insurers are able to use their significant financial power to bring pressure to bear on victims of personal injury actions nof to pursue litigation in circumstances where claims may be difficult but are by nd means without merit. As Sheriff Principal Taylor recognised in his review of expenses and funding, there is an asymmetrical relationship at present between defender insurers and pursuers. The asymmetrical
3 relationship is such that victims of meritorious but difficult claims can find it hard to obtain legal advice and representation and in many cases are unable to fmd a solicitor to pursue a claim for them. The introduction of damage based agreements will go a long way to remedy that situation and rebalance the current asymmetrical relationship highlighted by Sheriff Principal Taylor. Question 7: What is the likely impact on you or your business of allowingdamage based agreements to be enforceable by solicitors in Scotland as a pursuer personal injury law practice? We believe that introduction of damage based agreements shall provide an equality of access to justice among victims of accident, injury and disease. It will also create an equality of competition between personal injury pursuer firms. Currently, solicitors who underwrite the risk of losing personal injury actions on behalf of their clients apply different standards in determining whether or not to pursue a claim. Pursuers with difficult but meritorious claims may therefore fmd that their ability to access justice and to pursue a claim for compensation will depend as much upon luck in relation to which solicitor may approach to represent them as much as it has anything to do with the strength of their case in law. Damages based agreements taken together with QOCS ought to remove the element of luck and provide all victims of accident, injury and disease with the same level of access to justice by ensuring that all victims with meritorious claims (albeit some that may be difficult) will be able to pursue those claims in court. Currently, different law firms approach the funding of their client's claims in very different ways and take significantly different approaches to agreements in relation to fees to be charged in the event of a case being successful. The introduction of capped damage based agreements will level the playing field between solicitors. It will allow and encourage competition between solicitors which will benefit clients. It will also allow solicitors to compete with claims management companies and similar organisations. That will also benefit victims of injury and disease. Question 8: Do you think the lack of a cap on damage based agreements prevents potential pursuers of actions from obtaining justice. Victims of accident, injury and disease require certainty. The lack of certainty in the form of a cap on damage based agreements will certainly serve as a barrier to prevent potential pursuers from obtaining access to justice and pursuing claims. Question 9: What impact would the introduction of a cap on damage based agreements have on: (i) Pursuers of actions
4 It will increase access to justice and provide certainty. It will allow pursuers to properly compare and contrast different solicitors and providers of personal injury services to allow them to make an informed choice as to who they wish to represent them. (ii) Defenders of actions There should be no impact on defenders. (iii) You and your organisation For the reasons set out in our answer to question 7, there will be a positive impact, both in terms of allowing us to improve access to justice for our client and to compete fairly and evenly with other solicitors and claims organisations. (iv) Other organisations No comment. Question 10; Which group of individuals/organisations are likely to benefit most from a cap on damage based agreements? For all of the reasons above, victims of accident, injury and disease. Question 11: Which group of individuals are likely to be most disadvantaged from a cap on damage based agreements? None. Question 12: What measures could be considered to both identify and mitigate against disadvantages from a cap on dathage based agreements? No comment. Question 13: No comment. Question 14: Do you agree the proposed statutory controls should apply to anyone offering damage based agreements? I The statutory cap on damage based agreements should apply to all providers of claims services including claims management companies. The obligation to cap damage based agreements would be entirely toothless without appropriate regulation. We
5 would therefore propose that there would be two distinct levels of regulation in relation to claims management companies. Firstly, if a damage based agreement between an individual and a claims company contains provision for a percentage higher than statutory cap, then the entire agreement should be unenforceable and the victim should be entitled should be entitled to their entire damages. Secondly, any solicitor who is instructed or otherwise passed a claim by a claims company should be under a professional obligation to consider and advise the client upon their terms of agreement with the claims management company. If the agreement with the claims management company provides for recovery in excess of the statutory cap, then the solicitor will be under a professional obligation to advise the client that the agreement is unenforceable. Secondly, at the conclusion of the case, the solicitor will be under a professional obligation to deduct no more than the statutory cap from their client's damages. A solicitor failing in either of these professional obligations ought to be a conduct issue which will carry the possibility of all of the relevant professional and Scottish Legal Complaints Commission sanctions. Question 15: What should the sanction be for non-compliance with statutory control? Please see our answer to question 14. Question 16: If any of the provisions of the rules are breached then should the agreement become voidable? Question 17: Do you agree that the future loss from the success fee should not be ringfenced? We agree it should not be ringfenced and future loss should form part of the calculation of fees under the damage based agreement. Sheriff Taylor, after careful consideration and extensive consultation, took the view that future loss should not be ringfenced. We agree with Sheriff Taylor's analysis and conclusions. Sheriff Taylor did recommend the need for 'safeguards' in relation to catastrophic injury by proposing a smaller cap on success fees in higher value cases. We agree with that recommendation and Sheriff Taylor's proposed caps in such cases. Larger value cases, with more significant elements of future wage loss, are more likely to be complex in law and in fact. The amount of work that a solicitor requires to undertake in such cases will self-evidently be more than cases of a lower value. Additionally, the level of professional responsibility in such cases will be higher. If future loss was ringfenced, we believe that solicitors would not be compensated at an appropriate level for the time, effort and professional responsibility associated with higher value cases with large elements of future loss.
6 Question 18: What impact would not ringfencing future loss have on: (i) Pursuers of actions Victims of the most serious injuries, which will inevitably contain the highest amount for future loss, require advice on representation from solicitors more than any other victim. Because of the increased burden of investigation, cost, time and responsibility associated with pursuing more serious injury claims on behalf of clients, the proportionate level of financial compensation for solicitors in such cases would be less if future losses were ringfenced to the extent it is entirely conceivable that solicitors would not be willing to act in such circumstances. In other words, ringfencing future losses would restrict victims of the most serious injuries access to representation and therefore access to justice. Such an outcome would run contrary to the purpose underlying the proposed Bill which aims to increase access to justice. An analogy may be drawn with the USA, where solicitors fees comprise exclusively of sums recovered from clients under damage based agreements. It is well documented that victims of low value claims find it very difficult to obtain access to justice and legal representation because the level of damages to which they would be entitled would be insufficient for an American attorney to make a proportionate return in fees for the time and effort spent pursuing the matter on the client's behalf. It will be recognised that a similar outcome could occur in Scotland with higher value cases if, through future losses being ringfenced, solicitors believed that the commercial return on fees was insufficient in relation to the time, cost of investigation and professional responsibility imposed upon them in relation to the most serious cases and money which is meant to provide care and loss of future income would be directed to legal costs. (ii) Defenders of actions None (iii) You and your organisation None ringfencing future loss will allow Thompsons Solicitors to be appropriately and proportionately compensated in terms of fees, taking account of our investment of time, cost of investigation and professional responsibility in relation to all cases, particularly including the most serious matters. It will therefore allow us to pursue cases, and ensure access to justice, for all of our clients. Our answer presupposes that judicial expenses will continue to be recovered at, at least, their current level, which is essential. (iv) Other organisations None.
7 Question 19: Do you agree that a new code of practice applying to au persons and businesses offering damage based agreements should be developed? This seems an entirely sensible proposition. It is essential that it applies to claims management companies and similar organisations as well as solicitors. Question 20: Should a new code of practice be statutory or non statutory? Provided the cap is properly regulated by the type of mechanisms by the type of mechanisms set out in our answers to questions 14 and 15, we are content that the code be a non statutory one developed in a statutory led basis. Question 21: Should the development of a new cqde of practice be sector led? We refer to our answer to question 20. Qualified One way Cost Shifting (OOCS) Question 22 - Do you think that a introduction of the system of one way cost sifting will increase access to justice? Sheriff Taylor recognised the asymmetrical relationship between insurance company defenders and pursuers in personal injury actions. The reality of the asymmetrical relationship was at the heart of many of Sheriff Taylor's recommendations including those in relation to QOCS. We agree entirely with Sheriff Taylor's findings in relation to the existence of the asymmetrical relationship and the practical impact it has upon access to justice for victims of personal injury. Pursuers of personal injury claims have various funding options open to them. They include Trade Unions, after the event insurance and the financial risk of the claim being lost being borne by the pursuer's solicitors. The latter model is now the most common. Whichever model applies, it stands to reason that different parties underwriting the risk on behalf of the pursuer will apply different forms of risk assessment and will, in tum, apply different standards as to the amount of risk they are prepared to take and the cases they are therefore prepared to pursue. Sometimes the funder will require prospects of success to be 70%; sometimes 60%; and sometimes less.
8 This has two significant practical consequences. Firstly, different pursuers whose cases have similar if not identical prospects of success may have different outcomes in being able to pursue a claim purely on the basis of their luck as to which solicitor they chose or which funding models they have open to them to pursue their claim. In other words, it will come down to which solicitor the victim is lucky (or unlucky) enough to appoint and that solicitor's approach to taking a financial risk that will determine whether the victim can pursue a claim. Secondly, irrespective of the funding models available there will be victims of accident, injury or disease who have meritorious claims but which no solicitor or funder will be prepared to underwrite because either the prospects of success are not sufficiently high or the potential fmancial cost of losing a court case will be too high. This will be the case where the circumstances of the accident are complex in fact or law, where several expert reports are required or where the length of the Court hearing/proof is likely to be significant. Medical negligence is an obvious example of such types of case but there are also others including industrial disease and, now, as a result of Section 69 of the Enterprise and Regulatory Reform Act 2013 removing statutory civil liability from workplace accident cases, many work related accidents. The asymmetrical relationship has been exacerbated and intensified by Section 69 of the Enterprise and Regulatory Reform Act Because of Section 69, work related cases are now significantly more difficult to investigate and pursue and victims of such accidents are already fmding it more difficult to obtain legal advice and representation to pursue claims on their behalf. The introduction of QOCS will go some way to restoring the balance for victims of accident, injury and disease who wish to pursue claims irrespective of funding options open to them and irrespective of their individual luck in the solicitors they approach to represent them. QOCS will introduce equality of access to justice and therefore improve overall access to justice for every victim of accident, injury and disease. It will particularly improve access to justice for victims of difficult but meritorious cases such as medical negligence and complex industrial disease and work related accidents. We additionally can see three benefits to the public purse with the introduction of QOCS. Firstly, the introduction QOCS will undoubtedly reduce even further the Scottish Legal Aid budget in relation to personal injury claims. Indeed, QOCS could very well lead to the situation where there is very little need for Legal Aid to cover personal injury claims at all. Secondly, it is the settled policy of the Scottish Government that the civil courts will pay for themselves. Civil court cases therefore generate income for the Scottish Court Service. The introduction of QOCS may result in an increase in the number of litigated actions each year which will, in turn, result in an increase in income for the state. Thirdly, there will be significant trepidation about the new specialist personal injury court when it opens its doors in September. Parties are likely to be slow to litigate in the court until they are content that it measures up to its declared intention to provide at least as high a level of quality of access to justice as currently provided by the Court of Session. The introduction of QOCS will go a long way to encouraging a
9 higher level of litigation at the new specialist personal injury court and will therefore assist in easing the transition for parties to the new regime. Question 22(3) - What impact would the introduction of a system of qualified one way cost shifting have upon you and your organisation? The introduction of QOCS will allow us to ensure that all of our clients are able to have access to justice. We will be able to advance every meritorious claim on behalf of our clients without the (currently sometimes significant) risk of exposing the partners of the firm or our clients' funders to the significant financial penalties that can result from paying a defenders judicial costs particularly in relation to difficult cases. As a Trade Union law firm Thompsons act for large numbers of victims of industrial accidents and disease. As a result of Section 69 of the Enterprise and Regulatory Reform. Act 2013 many of these cases are now extremely difficult. Pursuing a work-related case in the post-section 69 legal environment involves undertaking significant amounts of investigation and often requires expensive expert reports. Although meritorious, such cases are now very complex in law and their prospects of success very difficult to assess. With the introduction of QOCS, the victims of such accidents, injury and disease will have access to justice in a way in which they otherwise would not under the current funding regime. Question 23 - What impact would the introduction of a system of qualified one way cost shifting have upon: 1 Pursuers of actions: - The introductions of QOCS will provide an improved and level playing field for all victims of accident, injury and disease in terms of access to justice. The current costs and funding system accentuates the asymmetrical relationship identified by Sheriff Principal Taylor. It creates the environment in which defender insurers can use their "deep pockets" to wield exonomic pressure on funders of PI cases to abandon or not pursue meritorious cases. There are many tactics that insurers can use to increase the overall cost of court actions to achieve such an outcome including employing Senior Counsel, multiple experts, significant lists of witnesses and incidental court procedures to delay matters and increase the overall cost. QOCS shall insulate victims from such economic pressure and allow victims of all meritorious cases access to justice and the ability to pursue cases. It is however important to remember that these benefits will not open any floodgates and should not result in unmeritorious claims being pursued. A victim wishing to pursue a claim will still require to engage a solicitor. That solicitor, even with the benefit under the QOCS regime, will require to spend time and money investigating the claim. The solicitor or funder will also still require to carry the cost of the pursuer's own experts and court costs. All of these factors will serve as a more than sufficient barrier to ensure that neither solicitors nor other funders will seek to pursue unmeritorious claims.
10 We also believe that there will be a knock on benefit for the victims of accident, injury and disease in relation to pre-action settlements. There is currently a Voluntary Pre-Action Protocol in relation to personal injury cases. The Protocol is intended to serve victims and insurers alike by bringing to a speedy resolution at an appropriate level of compensation cases which on balance enjoy reasonable prospects of success. Currently, the Protocol all too often fails. There are far too many examples of insurers not admitting liability in cases in which they should; and where offers of settlement are significantly less than court awards. QOCS will serve to significantly focus the minds of insurers at pre-litigation. It is very likely to result in insurers taking the Pre-Action Protocol more seriously and therefore settling cases which ought to be settled at a fair and reasonable level because victims who do not achieve a fair outcome at Pre Action Protocol will, under QOCS, litigate without fear of financial risk. 111 What impact would the introduction of a system of qualified one way cost shifting have upon defenders of actions? There ought to be no impact on defenders and defenders ought to have nothing to fear in relation to the introduction of QOCS. For the reasons set out in our answer to question 23 (i) we do not foresee that QOCS will open a floodgate to claims. If QOCS focuses the minds of insurers at the Pre-Action Protocol stage they will actually save money. Representatives of the insurance industry regularly state in the press and other public media that they want victims of meritorious claims to obtain the compensation to which they are entitled. The introduction of QOCS will significantly advance the likelihood of that outcome being achieved and insurers ought therefore to welcome its introduction. Defenders will still be able to rigorously and aggressively defend cases which they do not consider to be meritorious. They will simply no longer be able to do so in a way that their deep pockets and the asymmetric relationship between them and pursuers will not allow them to apply fmancial pressure on pursuers to abandon meritorious claims. Additionally, defenders will continue to have the protection of being able to lodge a Tender in process. Question 24 - Which group of individuals/organisations are likely to benefit the most from the introduction of a system of qualified one way cost shifting? Victims of workplace accidents, industrial disease and medical negligence. Medical negligence cases have always been difficult, expensive to investigate and the cost of losing such cases extremely high to the Iparty underwriting the case. That is now also true in relation to workplace accidents and industrial disease cases by reason of Section 69 of the 2013 Act. The introduction of QOCS will allow the victims of such cases better access to lawyers who are willing to investigate and pursue claims on their behalf. In short, it will significantly improve their access to justice.
11 Question 25 - Which group of individuals are likely to be most disadvantaged from the introduction of a system of qualified one way cost shifting. It may be suggested that insurers will be particularly disadvantaged by QOCS. For all of the reasons set out in our answer to question 23(2) we do not accept that it is inevitable or indeed likely to be the case. We can see that individuals who are uninsured defenders will face some disadvantage by the introduction of QOCS. In our experience, uninsured defenders are very rare. Such individuals will have had the opportunity to purchase insurance and chosen not to do so (and, of course, insurance is compulsory for employers and motorists). It must be remembered, there will be insurance cover available for every circumstance affecting a potential defender affected by qualified one way cost shifting. We therefore should not build a system around a very small number individuals who decide not to purchase relevant insurance. Further, the number of uninsured defenders who will be disadvantaged in this way are so small that we see no reason whatsoever for allowing that very minor issue to outweigh the significant and far reaching benefits that will be achieved through the introduction of QOCS. Question 26 - What measures could be considered to both identify and mitigate the disadvantages from the introduction of a system of qualified one way cost shifting? There will always be insurance products that individuals can purchase to protect themselves. There is no better example of this than the insurance industry's response to the recent court case in which an individual golfer was sued for striking another golfer with a golf shot. Thus, on one level QOCS will present another commercial opportunity to the insurance industry. The best way to identify and mitigate against potential disadvantages from the introduction of QOCS is to educate the public and to ensure that they are aware of the range of insurance products available to them and their potential importance in order that individuals can weigh up for themselves their need to purchase such products. Question 27 - Do you agree that the test for losing the benefit of qualified one way cost shifting should be fraud. abuse of process and in the case of Wedensbury unreasonable behaviour? We believe those tests are adequate. We believe the bar for losing the benefit of QOCS should be set at a high level. As Sheriff Principal Taylor put it in his own review, for the benefit of QOCS to be removed it must be necessary for "the court to apply a high test". If the bar is set at too low a level or even if the language of the legislation is not sufficiently clear, it will invite significant numbers of challenges by defenders to remove the benefits of QOCS. This will remove the benefit of certainty that QOCS
12 aims to provide. It will frustrate fundamentally the overriding object of improving access to justice within the consultation's recommendations. It would render the entire proposed legislation redundant and should be avoided at all costs on policy grounds. Question 28 - What is your view on the argument that the reform package removes risk to pursuers of actions? We firstly do not accept that the position is correct. Secondly,.that proposition in policy terms serves only to undermine the significant improvements that the package of reforms will have on access to justice by redressing and rebalancing the current asymmetrical relationship between defender insurers and pursuers of personal injury cases. The proposition is therefore entirely rejected. The package of reform will not remove all risk to the pursuer of actions. Instead, the risk will be proportionate and appropriate for the purpose of achieving the overarching, and very important, policy objectives of improving access to justice, creating an equality of access to justice and insuring, as far as possible, that pursuers will be able to advance all meritorious claims, even those that are difficult or expensive to investigate such as medical negligence, industrial disease and workplace accidents. There will still be risks to pursuers which will serve as an appropriate protection for defenders and will prevent the floodgates from opening. Time and money will still require to be spent investigating cases before a decision is made as to whether or not it should be pursued through court. Court fees are about to be increased again. At present it costs about 4000 to raise and run a case to a four day hearing. Court fees themselves have become a disincentive for running poor cases. Because of damage based agreements and speculative fee agreements that may not be a risk to the pursuer hirnselflherself but will certainly prevent unmeritorious claims advancing and the floodgates opening. Moreover, insurer defenders will still benefit from the protection of Tenders. That will represent a continuing and not insignificant risk to pursuers. The risk of the pursuer losing the benefit of QOCS in certain circumstances where their conduct justifies it will also serve as a real risk in the mind of all pursuers and will regulate behaviour accordingly. Thus, we submit that it is incorrect to say that there is no risk to pursuers. Instead the package will simply create a level of risk that is appropriate and proportionate in all of the circumstances. Question 29 - business? What is likely to be the overall impact of the package on your We refer to our answer to question 22(3). The impact of the overall package will have the same impact as detailed in relation to the impact on the introduction of QOCS.
13 In short, it will remove the, often significant, fmancial barrier that currently exists and which prevents us achieving access to justice for all of our clients with meritorious claims. It will allow us to pursue difficult but meritorious claims particularly those in relation to workplace accidents, industrial disease and medical negligence. The package will go a long way to ameliorating the impact of Section 69 of the Enterprise and Regulatory Reform Act 2013, an Act of the Westminster Parliament which has been subject to significant and justified adverse political commentary in Scotland. Question 30 - What do you think the impact of the overall package will be on: (a) The general level of claims? We do not think that the package of reform will have a significant impact on a level of claims intimated against insurers each year. The public are already quite well aware of the law in relation to personal injury claims. As is the case at present pursuers' solicitors will serve an important role in sifting out unmeritorious claims. Unmeritorious claims will continue not to be pursued. The difference will be in relation to the difficult but meritorious claims which are intimated in relation to which the current asymmetrical relationship between defender insurers and pursuers can result in claims not being pursued. Although we do not think that the package will result in a meaningful increase in claims it is important to remember that Sheriff Principal Taylor concluded in his review that there is currently ''under claiming" in Scotland and accordingly some increase in claim levels would be no bad thing and would simply represent more people exercising rights that are theirs and which they are currently, for whatever reason, choosing not to exercise. (b) The general level of litigation? For the reasons set out in answer 30(a) we can see that the package may result in a higher number of cases each year litigated. These will be cases which are meritorious but in relation to which an insurers either rejects the claim or tries to "under-settle" by making offers at a level lower than likely court awards. Having said that, for the reasons set out in our answer to question 23(i) we believe that the package of reform are likely, or at the very least should, focus the minds of insurers more clearly than is presently the case on achieving appropriate, fair and reasonable settlement at Pre-Action Protocol stage. Thus, if the package of reforms do focus the minds of insurers on the Pre-Action Protocol stage there will not be an increase in litigation levels and instead more claims will simply settle pre-litigation with all of the benefits that such an outcome brings to the victims, insurers and pressures on the court system. (c) The trajectory of claims and settlement rates For the reasons set in answers 30(a) and 30(b) we can see that there is some likelihood that although there will not be a significant increase in the number of claims intimated each year to insurers and the number of cases litigated per annum
14 may be likely to increase. Nevertheless, the package of changes may focus the minds of insurers such that a higher proportion of cases settle at Pre-Action Protocol stage than present with all of the benefits that such an outcome would have. (d) Pursuers of actions We refer to our answer to question 23(i). There will be benefits to pursuers of actions. It will increase access to justice and we believe that there ought also to be benefits in terms of more cases settling through the Pre Action Protocol. For the reasons set out above, we do not believe there will be any opening of floodgates. (e) Defenders of actions We refer to our answer to question 23(ii). The overall package ought to have no impact on defenders or insurance companies and they ought to welcome the proposals. (f) Pursuers' solicitors The overall package will allow pursuer's solicitors to advance difficult but meritorious claims. It will improve their ability to ensure their clients' access to justice. (g) Defenders' solicitors The overall package ought to have no impact upon defenders' solicitors. will be able to continue to protect their client's interests with tenders. People (h) See answer 30(e) above. (i) Case management companies No comment. (j) The courts The overall package may result in more cases being litigated which, in turn, may result in increased income for the Scottish Court Service. Similarly, the overall package may help ease the transition into the new personal injury court when its doors open in September for the reason set out in answer to question 22, above. On the other hand, the overall package may focus the minds of insurers more upon Pre Action Protocol which may mean that there will be no significant increase in litigated cases. (k) The overall package ought to mean that even fewer personal injury cases will be a cost for the Scottish legal aid budget. Indeed, if effective in its policy aims, the overall package could readily create the situation where legal aid is rarely, if ever, required for personal injury cases.
15 (1) No comment (m) Others No comment Question 31: Do you agree that there should be a table of fees introduced for Counsel in the Court of Session? Question 32: Do you agree that there should be a table offees introduced for Counsel in the Sheriff Court for those cases where sanction for Counsel has been granted? Question 33: Do you agree that Solicitor Advocates should be included in this table of fees? For the avoidance of doubt, we believe that there should be a table of fees for Counsel and Solicitor Advocates in the Sheriff Court which should apply to fees for Counsel and Solicitor Advocates where sanction for Counsel has been granted. In short, sanction for Counsel in the Sheriff Court should include sanction for employing. Solicitor Advocates and parties should be entitled to recover the same level of fees (to be covered by the proposed table of fees) for Counsel and Solicitor Advocates. Question 34: Do you agree that the Scottish Civil Justice Council is best }21acedto develop and maintain the table of fees? Yes, subject to the condition that the Scottish Civil Justice Council should have no right to treat the Faculty of Advocates and Solicitor Advocates differently in terms of sanction, table of fees or on any other basis. It is also essential to do so that the Scottish Civil Justice Council compnses practitioner representatives with appropriate experience from all relevant areas of practice interest. In particular, it is essential that there is membership representation from both general pursuer personal injury and specific interest groups representing large and important court user groups such as trade unions and lung disease victims. Question 35: What do you think the imooct of introducing a table of fees will be on pursuers of actions, defenders of actions. solicitors, Solicitor Advocates, Counsel. the Scottish Legal Aid Board and others?
16 The introduction of a table of fees applying equally to Counsel and Solicitor Advocates will provide pursuers with choice and freedom of instruction; defenders, pursuers and the Scottish Legal Aid Board with certainty; and will create fair and open competition between Counsel and Solicitor Advocates without any barriers to trade. Introducing a table of fees will benefit all of the court users and interested parties described in question 35. Multi Party Actions - Question (inclusive) We support multi-party action option 3. We accept the analysis and argument within the consultation document.