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Expenses: the Taylor Report and
Recent cases
Andrew Smith QC
Kay Springham, Advocate
Seminar Outline
• The Taylor Review – the main recommendations
(Andrew Smith QC)
• Recent authorities bearing on expenses (Kay
Springham, Advocate)
The New Language
• QOCS
• SFA
• DBA
• CLAF
• SLAS
• PPO
• PEO
• LASPO
• BTE
• ATE
• MPAS
• GLOS
Introduction
• Taylor Review is annex to Gill Reforms
• Recommendations almost certain to be
implemented
• Implement by primary legislation
• SSI
• Professional Regulation
• Practice by the Courts
The English Experience
• Far wider reaching than E and W
• Far more pursuer minded than E and W
• Starting with a “clean sheet” without the
problems that were in England
• Inevitable “satellite” litigation in Scotland, with
appeals and complex motions
• Significant changes to business models (e.g.
software for expenses management)
The Main Themes of the Review
• The Cost of Litigation: Judicial Expenses
• Counsel’s Fees and Expert Witness Fees
• Fixed Expenses and Summary Assessment of Expenses
• Protective Expenses Orders
• BTE Insurance
• Speculative Fees Agreements
• QOCs
• DBAs
The Main Themes of the Review
• Multi Party Actions
• Regulation
1/10: Costs of Litigation
• Difference between recovered expenses and
client’s liability is driving force
• Desire to narrow gap, to make litigation more
attractive in Scotland
• Desire to encourage “efficiency” in litigation:
the increasing use of electronic documentation
to ensure efficiency
2/10 Counsel’s Fees, fees in general and
Expert Witness Fees
• Reasonableness
• “Proportionality” – not defined
• Extensive tables of fees for
Commercial Causes
• Additional Fees: recast of criteria
• Judge fixing percentage uplift
• Fix percentage at the start (max
100%)
The Test for Sanction for Counsel
• The test to be as it is now – whether
“appropriate” – McAllister v SLAB
• Should be distinguished from whether it is
“necessary”
• Not as high as “exceptional circumstances”
Legal Aid implications: Sanction in the
Sheriff Court?
• Interest on Expenses – from
28 days after account lodged
recommended in Taylor
• Four month rule introduced to
Sheriff Court for submitting
account of expenses
If sanction is granted by a sheriff, how
does that impact on an application for
sanction from SLAB?
Counsel’s Fees
• Advance Sanction in Sheriff Court
• Control over level of fees to
counsel – clerks’ input
Statutory Instrument (Sanction for the
Employment of Counsel in the Sheriff
Court) 2011
Recommend:
Consider instructing counsel for
the motion for sanction
Ensure that able to advise on
proposed fees
3/10 Fixed Expenses; Costs Budgeting and
Summary Assessment of Expenses
• Budgeting in Commercial
Cases (C of S and Sh Ct)
• Rolled out to all litigation
Summary Costs Assessment
4/10 Protective Expenses Orders
Currently not limited to Environmental
cases
• To ensure compliance with Aarhus
• Sullivan Report – blatant non compliance by UK
• To be extended to all public interest cases
• Essentially “costs capping” by the Court
• See Uprichard v Scottish Ministers
5/10 BTE Insurance
BTE to be “encouraged”
A number of problems
Regulation of making sure that
insured knows he can choose his
solicitor
6/10 Speculative Fees Agreements
Success Fee: AKA “SFA”
or Speculative Fees Agreement
• From Client’s own Damages
• Applies to all heads of claim in PI cases
• Applies to all damages in other types of case
7/10 QOCs
Qualified One Way Costs Shifting
Will initially only apply to PI cases
including Clinical Negligence
Will be extended to defamation soon
in England. Scotland to follow
Intention to apply to other types of
cases too
The Rules
If the pursuer wins, he is awarded
expenses
If the pursuer loses, he does not pay
expenses
The Exceptions
• Unreasonable conduct by the pursuer eg where
there is summary dismissal of the case
• Dishonesty or Fraud
• Failure to beat a tender (by an unreasonable
margin) BUT recovery limited to 75% of what is
awarded
8/10 DBAs
“Damages Based Agreements”
Current Difficulty
• Prohibited by Faculty of Advocates
• Unenforceable per Law Society of Scotland
Solution
Changes in Regulations for bodies
Statutory Instruments?
Primary Legislation?
Operation of DBAs
• In Addition to SFA
• Number of checks to ensure client fairly
informed including cooling off
• Attaches to all claims, past and future other than
PPOs
• Controls to ensure approval of £1m plus
settlements per SFAs
How a Pursuer’s Solicitor can Max the
return in a PI case
• His client is protected by a QOC
• He obtains an additional fee from the defender
• He has an SFA or DBA in place giving him a
further considerable slice of fees, doubling
them, up to maxima
Example
• Say the case settles for £500k
• Fees are assessed at £100k
• Additional fee of up to £100k
• He can charge up to £60k in SFA success fee
• OR he can charge up to £60k in DBA
• Note that the DBA is easier to obtain the
sizeable chunk as it is not dependent on costs
assessment
Commercial Example
• Fees of £100k
• Additional fee of £100k
• Success fee of £100k
• Or DBA of up to £250k
• Note DBA gives higher sum than SFA and is not
dependent upon the fees assessed
9/10 Multi Party Actions
MPAs
Main Types of MPAs
• Single cause of action for multiple parties –
pharma and other medical cases
• Lack of experience in Scotland on such cases
• Encouraging Rules of court to ensure efficiency
Scottish Experience
• Braer
• Piper Alpha
• Vioxx
• Celebrex
• Anti Depressants
• TVM
Future Claims in Scotland?
• Share/securities fraud? – litigation by pension
funds or large groups of individuals
• Major disaster litigation: airlines, coach crashes
• Negligence Medical Treatment by “rogue”
doctors
10/10 Regulation of Claims
Management Companies