Supplementary Legal Aid Scheme (SLAS) be introduced in Scotland? If so, which is preferable?
We think the introduction of such a fund could be a useful way of funding some types of disputes, such as multi-party actions.
When considering which model is preferable, we would urge the Review to exercise caution when considering responses; it appears there may have been a change to the terminology in recent years, which may cause confusion to
respondents. The consultation paper, for example, refers to the Hong Kong model as a SLAS, whereas the Scottish Law Commission, in its 1996 report on multi-
53
Consumer Focus Scotland (2011) Ensuring effective access to appropriate and affordable
dispute resolution: the final report of the Civil Justice Advisory Group, Glasgow: Consumer Focus
Scotland
54
See for example the opinion of the court delivered in the appeal by NJDB against JEG and John Noel James Andrew [2010] CSIH 83. In this case, the Lord President was critical of the length of the proof, which ran for 52 days. Pointing to the lack of control that the judiciary has over the length of proceedings, he suggested that the liberty that professional advisers have in this regard should be curtailed.
Consumer Focus Scotland response to the review of expenses and funding of civil litigation in Scotland.
www.consumerfocus-scotland.org.uk 31
party actions, referred to this model as a CLAF.55 It will therefore be imperative for the Review to be clear about what models respondents are referring to.
The Civil Justice Advisory Group suggested that a ‘contingency legal aid fund’ (an independent, self-financing model) might provide a possible funding model.56 Although initial funding would need to be provided by the state, it thought that the administrative costs of the scheme could be met by charging a registration fee to all applicants. In 1996, the Scottish Law Commission concluded that the
arguments in favour of such a fund were stronger than the counter-arguments.57 The Commission was examining the fund specifically in the context of multi-party actions, however, and came to the view that such a fund may not be viable if restricted to such actions. CJAG thought there may be scope for reconsidering such a fund in relation to court actions more generally and this issue was raised during the CJAG seminar series.58
The SCC has also previously recommended that an independent Class Action Fund, similar to a CLAF, would be an appropriate means of funding multi-party actions.59 It may be prudent for the Review revisit this proposal when considering whether to introduce a contingency legal aid fund or supplementary legal aid fund. It will be important to ensure that, particularly in relation to multi-party actions, the funding mechanism is adequate:
a) to support actions where not all members are eligible for legal aid; and b) to support actions where a private interest is being pursued, as well as
public interest actions.
c) to enable organisations to receive funding to take representative action. We support the Scottish civil courts review recommendation that appropriate means should be found to make funding available to organisations taking action, for example by means of representative action, as well as individuals. We believe that representative actions could significantly increase access to justice for large numbers of consumers who are entitled to compensation, but who do not wish to take individual claims for relatively small amounts of money. We think that the widening of representative actions of this nature could potentially lead to a
fundamental shift in the way in which litigation is undertaken in the Scottish courts. Question 52: If such schemes were to be introduced, what types of litigation should be covered?
At a minimum, we would like to see such a scheme being available for multi-party actions, including representative actions. We are delighted that the introduction of
55
Scottish Law Commission (1996) Multi-Party Actions: Report No. 154, Edinburgh: Scottish Law Commission
56
Scottish Consumer Council (2005) The Civil Justice System in Scotland – A Case for Review?
The Final Report of the Civil Justice Advisory Group, Glasgow: Scottish Consumer Council 57
Scottish Law Commission (1996) Multi-Party Actions: Report No. 154, Edinburgh: Scottish Law Commission
58
Scottish Consumer Council (2005) The Civil Justice System in Scotland – A Case for Review?
The Final Report of the Civil Justice Advisory Group, Glasgow: Scottish Consumer Council 59 Scottish Consumer Council (1982) Class Actions in the Scottish Courts, Glasgow: Scottish
Consumer Council; Scottish Consumer Council (2003) A class of their own: why Scotland needs a
Consumer Focus Scotland response to the review of expenses and funding of civil litigation in Scotland.
www.consumerfocus-scotland.org.uk 32
a multi-party action procedure has been recommended by the Scottish civil courts review and is viewed by the Scottish Government as being one area where it is hopeful for early consensus and implementation.60 We have long been supporters of the introduction of such a procedure, the SCC having published two reports since 1982 on this issue61 as well as holding a seminar for stakeholders on the topic.
Question 55: What further steps, if any, should be taken to promote pro