08 March 2019

As part of the programme of ongoing reform following Sheriff Principal Taylor’s Review of Expenses and Funding of Civil Litigation in Scotland, new rules will soon come into force regarding taxation of expenses in civil proceedings. The rules come into force on 29 April 2019 and will apply to proceedings raised in the Court of Session, Sheriff Appeal Court and Sheriff Court from that date. We identify some of the key changes:

• One of the most significant changes is a shift from block fees to unit-based charging. A unit, which equates to 6 minutes, is to be charged at £16.40. The old table of fees is replaced by a Table of Charges which specifies how many units are to be charged for each item of work. At first glance, the shift from block fees to unit charging appears unlikely to result in any great savings as the fees ultimately recoverable remain on a par with the fees recoverable under the old rules.
• In Simple Procedure cases, all charges are to be reduced by 10%. The current rules also state that where a Simple Procedure case settles for less than £2,500, all fees are to be reduced by 50% for cases of less than £1,000 and by 25% for cases of between £1,000 and £2,500. The new rules extend that provision to all personal injury cases below £2,500. However, the new rules do not apply to summary cause claims. Currently, all personal injury claims of a value of less than £5,000 must be raised as a summary cause.
• Sanction for employment of counsel in Sheriff Court cases must now be sought before counsel is instructed in non-personal injury cases. This rule will not apply in personal injury cases, Simple Procedure cases, and proceedings in the Sheriff Appeal Court. There is provision for a party to apply for sanction for counsel retroactively, on cause shown.
• Certification of expert witnesses must also now be sought before the expert is instructed in non-personal injury cases. This rule will not apply in personal injury cases, Simple Procedure cases, and proceedings in the Sheriff Appeal Court. It would appear that the rule will apply in personal injury actions in the Court of Session which are subject to case-management procedure. There is provision for a party to apply for certification of an expert retroactively, on cause shown.

What impact will these changes have? There appears to be a move towards closer scrutiny of instruction of counsel and skilled witnesses in non-personal injury cases. Parties will have to show that the instruction of counsel or a skilled witness is necessary in advance, which may result in savings.

Links to Legislation:

http://www.legislation.gov.uk/ssi/2019/75/contents/made
http://www.legislation.gov.uk/ssi/2019/74/contents/made

Contact the Insurance team at: insurance@bto.co.uk