Costs of civil court action using the simple procedure
The costs of civil action include:
- fees for using the court and any facilities, including staff
- expenses you incur although you may be able to claim these back depending on the value of the case and who wins.
A key question about making and responding to a civil action relates to whether you want to employ a solicitor, use a lay representative or raise or defend the case on your own. If you raise or defend it yourself you will be known as a party litigant.
Help with legal costs
Legal aid is the general term for schemes available to help people with the costs of legal advice or representation. The schemes are administered by the Scottish Legal Aid Board.
Two types of legal aid are:
- advice and assistance
- civil legal aid.
In addition to these types of legal aid there is special provision for representation in some cases. A solicitor cannot normally represent you in court or at a tribunal under the advice and assistance scheme, except in certain limited circumstances. Your solicitor, if you have one, will be able to advise you when Assistance By Way of Representation (ABWOR) is possible.
The general rule is that for claims:
- below the value of £3,000 there is no legal aid available for representation unless it is for an appeal or a personal injury case. You may be eligible for advice and assistance but not for help with representation under this scheme
- above the level of £3,000 legal aid may be available if you are eligible and the case is on the list of eligible case types. Advice and assistance may also be available.
A fee is charged for starting the court action. It covers the cost of the forms for raising the action and sending a court document to the other party. You can send the document formally. This is called 'serving' the document. It means a fee is payable to the court. When the document is delivered by the sheriff officer there is a fee for that too. If you have a solicitor their firm will formally 'serve' the document.
You may have to pay to post an advert on the sheriff court website if you can’t find out the address of the other party.
Information about current fees can be found on the Scottish Courts and Tribunals Service website at www.scotcourts.gov.uk.
Using a solicitor to prepare the case and submit the claim form or defend your case will cost no less than £213. For every additional task there will be a charge. If you want to check what the solicitor can charge check here.
The cost of raising a court action yourself is dependent on the value of the claim:
- £300 or less (or 250 euros for European small claim) it costs £19
- above £300 it costs £104
If a sheriff officer has to be used to deliver the claim form on the respondent this will cost £13 plus the sheriff officer's fees.
Exemption from court fees
If you or your spouse or civil partner are receiving Income Support, income-based Employment and Support Allowance, Tax Credits or certain other benefits with a disability or severe disability element you are exempt from paying court fees. If you are receiving Universal Credit or income-based Jobseeker's Allowance you are exempt from paying court fees.
You have to apply for this exemption to the sheriff clerk of the court where you are raising the action at the same time as you are submitting the claim form. A copy of the form is available on the Scottish Courts and Tribunals Service website at www.scotcourts.gov.uk.
What are court expenses
If you win your case, you can claim back your expenses from the other party. Expenses will include money you have spent on:
- travelling to court
- time off work
- any required reports for evidence
- funds for witnesses to come
- costs of using a solicitor.
General rules on expenses under simple procedure
Under the simple procedure there are different rules about expenses depending on the value of the claim. As a general rule, court expenses are awarded to the party that succeeds in the claim. Although simple procedure applies to claims up to £5,000 there are different rules about the expenses the successful party can claim when the claim is:
- £3,000 or less – a limit is set on expenses
- over £3,000 and up to £5,000.
Claim is up to £3,000
Under the simple procedure there are special rules that limit the amount of expenses that can be awarded by the court when the case is worth less than £3,000. In addition the actual value of the claim below £3,000 is split into three categories with a different rule about awarding expenses for each. The rules are as follows:
- up to £300 no expenses can be awarded (cases raised before 1 April 2019 the limit was up to £200)
- greater than £300 but less than or equal to £1,500 the expenses awarded by the sheriff may not exceed £150 (cases raised before 1 April 2019 the figure was greater than £200)
- greater than £1,500 but less than or equal to £3,000 the expenses awarded by the sheriff may not exceed 10% of the value of the claim.
Claim is worth more than £3,000
When a claim is worth more than £3,000, at the end of the case, if the court makes an award of expenses, the amount to be awarded is usually calculated by the clerk of court (the sheriff clerk).
The sum awarded will depend on the amount and nature of the work which has been done in the case. At the conclusion of the final hearing of any case each party has to tell the court what their expenses are. In some cases a special hearing may have to be set to discuss expenses in full.
Exceptions to the general rules about expenses
In some cases full court expenses can be awarded to the successful party. The actual amount of expenses awarded may depend on the amount and nature of the work done.
The cases that can be treated as exceptions to the general rules about expenses are when:
- the person you took action against has not provided a defence, or
- the person you took action against did provide a defence but has not continued to use it in the case. There is a test case on this point on the Scottish Courts website when a respondent had to pay full expenses, or
- the person you took action against has not acted honourably in defending their claim, or
- the sheriff considers that either your behaviour or the behaviour of the person you took action against has been unreasonable.
Sheriff holds an expenses hearing
When the sheriff has not made an order about expenses at the same time as making the decision about the case a hearing can be called. At the hearing the sheriff can:
- decide not to award any expenses to either party, or
- make an order that payment is to be made to one party (or the party’s solicitor).