Rigidity, Discretion and Potential Reform: Cost and Fee Allocation in Scotland

Abstract

Notionally, Scots judges have a discretion as to whether to make a judgment shifting liability for the cost of a piece of civil litigation. In practice, however, judges rarely make full use of the latitude this discretion affords them. Instead, an award of costs will almost invariably follow success. This is so not only in instances where the case was routine and its outcome foreseeable in advance but also in those where the case broke new ground and its result was therefore in doubt until determined by the court. To that extent, Scots practice is perhaps unduly rigid. However, when it comes to assessing precisely how much should be awarded to the victorious party, the position is more complicated; one might say, capricious. The quantification of the award is a function of a complex interplay of factors, including which court the pursuer decided to commence the litigation in, whether all steps actually taken in the litigation can be demonstrated to have been reasonably necessary, the conduct of the parties and whether either of the parties was legally aided. This Chapter will describe and critique the basic “who pays?” rule, discuss the various factors having a bearing upon quantification, and have regard to proposals for reform which have recently emerged from a major review of the Scottish civil justice system.