Consultation on Scottish Court Fees

Section 2: Fee proposals

The Scottish Government considers that there are two possible approaches to achieving full cost recovery. Broadly these are:

• a flat rise―increase all fees by the same percentage (24%); or
• targeted increases―increase fees across a number of key fee points.

The proposals are based on data from 2014/15 as that is the most recent SCTS Annual Report and Accounts that is available ^[2] .

The aim of the increase in fees set out in either of these options will be to raise around £5m-£6m per annum which should ensure full cost recovery. It is worth noting that given the demand led nature of the courts, future fee income is dependent on the level of business and therefore these increases may deliver a deficit or surplus in any particular year. The review in 2018, and subsequent reviews, will seek to ensure that fees remain as close as possible to full cost recovery.

In looking at the options, we consider that it is fundamental that access to justice must be protected and that fees should not be set at levels which deter individuals from pursuing legitimate actions. The Scottish Government is also conscious that, in general, for many types of action, court fees are a much smaller component of the costs of taking legal action than the cost of paying for legal advice and representation.

One of the main ways we protect access to justice is through our fee exemptions as described above. The Scottish Government is committed to ensuring that those who require support will receive it. Consequently, there will be no detrimental change to the eligibility criteria or to the fee exemptions themselves, as a result of this consultation.

These proposed increases exclude the Office of the Public Guardian as the SCTS Annual Report and Accounts show that this area of the business is already achieving full cost recovery. Therefore, the consultation relates to those fees raised in the Court of Session and the sheriff courts.

Our proposals look at the costs of the whole of the civil justice system rather than the specific fee covering the costs for that specific service. However, we have, over the previous reviews taken into account that fees should reflect the level of activity associated with that fee whenever possible. For example, a fee for a hearing with 3 judges will be a multiple of the fee for a hearing with one judge.

Financial consideration

The table below summarises the annual increase in fee income that could be expected to be generated from the options based on the SCTS Annual Reports and Accounts for 2014/15.

Table 2: Estimated increase in fee income

	Per annum [3]
Option 1: Flat rise	£4.9m
Option 2: Targeted increase	£6.0m

We are aware that there will be a tipping point where fee increases may deter people from raising actions. We do not believe that the level of rises in either option 1 or 2 as proposed will have a deterrent effect as individual fees will still be relatively low, particularly when viewed against the total costs of taking legal action including the cost of legal advice.

Option 1: Flat rise

As noted in Table 1, there was a shortfall of £5.4m between the fee income and the costs of the civil courts in 2014/15. As already stated, the Office of the Public Guardian is already achieving full cost recovery so no increase is being proposed to those fees. Therefore, the deficit needs to be met from the fees in the Court of Session and sheriff courts.

Table 3: 2014/15 Gross fee Income

	£m
Court of Session	5.4
Sheriff courts	16.8
Office of the Public Guardian	4.8
Total	27.0
Total (exc Office of the Public Guardian)	22.2

As shown above, in 2014/15 the gross fees received in the Court of Session and the sheriff court was £22.2m. Therefore, to fund a deficit of £5.4m this would require an increase of those fees by around 24%.

Therefore, were this option to be preferred, then a flat rise of 24% would be applied to each fee charged in the Court of Session and the sheriff court. The fees in the Sheriff Appeal Court and the Sheriff Personal Injury Court would also be increased along with those fees charged in the High Court of Justiciary and the justice of the peace courts. Table 5 below shows the effect this will have on some of the major fees charged. The full set of changes are set out in the fee charging tables in Annex A which follows section 2 of this paper.

This option is a continuation of the approach that has been taken over a number of years with incremental rises to every fee level.

Option 2: Targeted increases

This option would involve fees being raised for some of the most common services to help achieve full cost recovery without the requirement to amend all the fees. Table 5 below shows the fees that we propose would be increased as a result of this option.

This option includes:

• increasing selected fees in the Court of Session and the sheriff court, whilst avoiding impacting upon small claims and other possible access to justice barriers. It is expected that this would raise approximately £4m;
• increasing hearing fees in the Court of Session to be a more realistic reflection of the cost of one of our most scarce resources―judicial time. It is expected that this would raise approximately £1m; and
• introducing a tiered Commissary fees structure. It is expected that this would raise approximately £1.6m.

The last bullet relates to commissary proceedings which deal with a deceased person's estate. The current fee in Scotland for any estate over £10,000 is £225. Earlier this year an alternative approach was set out in a recent consultation in England and Wales proposing a structure of fees based on the value of the estate for their equivalent proceedings (probate). That proposal looked to move more lower value estates out of having to pay a fee whilst increasing the fee for the higher value estates, culminating in a maximum fee of £20,000 for estates valued above £2m.

This option proposes a similar approach for Scotland, albeit setting the fees at a much lower level. The proposal would be to increase the value of those estates that are not charged a fee from £10,000 to £50,000. The fee for estates valued between £50,0000 and £250,000 would be raised to £250, and for any estates over £250,000 the fee would be £500.

Table 4: Commissary cases in Scotland 2015/16

Less than £50k	3,540	14%
Between £50k and £250k	14,548	58%
Between £250k and £1m	6,282	25%
Above £1m	524	2%
Total	24,894

Approximately 24,000 to 25,000 estates are registered each year for which commissary fees in the region of £5m per annum are collected.

Whilst the value of the estate when the inventory is registered is not held electronically by the SCTS, the manual records of inventories registered in 2015-16 were reviewed. The data from eight Sheriff Courts (Edinburgh, Glasgow, Aberdeen, Ayr, Dumbarton, Dunfermline, Greenock & Hamilton) equates to half of all inventories registered in the SCTS allowing an extrapolation of national distribution of estate values. This is shown in the table above.

Effect on key fees by each option

Table 5: Selected fees

	2016/17 Fee	Option 1: flat rise	Option 2: targeted
Lodging a claim
small claims or simple procedure (<£200)	£18	£22	£18
small claims or simple procedure (>£200)	£78	£97	£100
summary cause or simple procedure (>£3,000)	£78	£97	£100
summary applications	£96	£119	£120
Ordinary cause
lodging a claim	£96	£119	£120
hearing fee	£227	£282	£227
Divorce cases
lodging case	£150	£187	£150
lodging simple case	£113	£141	£120
hearing fee	£227	£282	£227
Sheriff Appeal Court
lodging appeal (summary)	£59	£73	£59
lodging appeal (ordinary)	£113	£141	£113
hearing fee (per day) bench of 1	£227	£282	£227
hearing fee (per day) bench of 3	£568	£707	£568
Sheriff Personal Injury Court
lodging action	£214	£266	£214
hearing fee (per half hour)	£77	£96	£77
Court of Session
lodging action	£214	£266	£300
lodging motion	£96	£67	£100
lodging record	£239	£297	£200
lodging defences	£214	£266	£300
hearing fee (per half hour) bench of 1	£96	£119	£200
hearing fee (per half hour) bench of 3	£239	£297	£500
Commissary proceedings (value of estate)
less than £5k	£0	£0	£0
between £5k and £50k	£225	£280	£0
between £50k and £250k	£225	£280	£250
above £250k	£225	£280	£500