Access to justice is important, but an increase in personal injury claims is not necessarily positive

Scales of justice - Image credit: Clara Molden/PA

Holyrood’s Justice Committee has been examining the Scottish Government’s Civil Litigation Bill.

That might not sound remotely interesting to most people, dealing as it does mainly with the costs for suing and being sued, but it has the potential to have wide-ranging effects.

The aims of the bill are laudable: to “increase access to justice by creating a more accessible, affordable and equitable civil justice system for Scotland”.

It is based on recommendations of the 2013 Taylor Review and among the changes are allowing solicitors to take payment through a percentage of the pay-out rather than a fee, and proposals for so-called ‘one-way cost shifting’ (OWCS) in personal injury cases, which means the defender pays their own costs regardless of whether they win or lose.

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The Scottish Government has promised the bill “will make the cost of civil action more predictable, increase the funding options for pursuers of civil actions and introduce a greater level of equality to the funding relationship between pursuers and defenders in personal injury actions.”

That is positive. Access to justice for all is a good thing. But care needs to be taken in how this is implemented and there are practical details still to be ironed out to ensure there are not unintended consequences.

OWCS is designed to address the imbalance of power, where an individual may be prevented from accessing justice due to the threat of having to pay crippling costs if they lose while pursuing a claim against an organisation that has the backing of corporate insurance. But what happens in other scenarios?

SNP MSP Stewart Stevenson illustrated this problem in the Justice Committee last month with a typically convoluted story.

It involved a wealthy driver who opens his car door in the path of a cyclist, who, unable to stop, then runs into the car door causing damage to the door and/or the rich driver, meaning they could both sue each other for damages.

The main point, though, was what happens if the person doing the suing is very rich and the person being sued is not well off.

Is it fair that the poorer person would have to pay all the costs, win or lose? This is still being considered.

There are also concerns that making it essentially cost free for someone to pursue a claim may lead to an increase in claims.

This was, in fact, one of the reasons for the changes, since following civil justice reform in England there had been an increase in civil cases which was not seen in Scotland.

But while increased access to justice is desirable, an increase in civil cases in itself may not be.

We need to ensure that while giving access to justice, we don’t fuel opportunism that sees every little trip or slip – or indeed, fictitious injury – as a money-making opportunity.

While measures are taken in the bill to avoid this – including a clause that OWCS will not apply in cases of fraudulent or unreasonable behaviour, or any other behaviour that amounts to “an abuse of process”, some concerns have been raised that the new rules may mean insurers just settle any and all claims out of court, regardless of merit, to avoid paying court costs, leading to an increase in pay-outs and premiums.

Add to this the fact that regulation of claims companies is currently much laxer in Scotland than it is in England, where it was tightened up 10 years ago, with no change here until after the independent legal services review reports next year, a gap could still be there for several years to come.