SCOTLAND’ S leading lawyers are on collision course with the Scottish Government after the Faculty of Advocates yesterday claimed that the country’s civil courts system could be operating illegally.

In an extraordinary development, the faculty stated that the Government “could be operating an illegal regime of charging litigants court fees at a level designed to fund the civil justice system”.

The Government is currently consulting on proposals to increase court fees over the next three years and has made no secret of the fact that it wants the costs of civil courts to be met less by the state.

An increase of 2.3 per cent is planned for April, followed by further two per cent rises in April 2019 and 2020.

In its response to the Government, the faculty repeated the stance it has taken in previous consultations – that as a matter of principle, the civil justice system should be funded by the state, not litigants.

The faculty said: “No part of our democratic society could function without our civil law being maintained by the operation of our courts. There is no warrant to shift the cost of the courts entirely on to litigants, when the whole of society benefits from them.”

“The purpose of the fees regime is to avoid paying for the courts from general taxation. The principle underlying the fees regime is that the user pays.

“The moral and philosophical justification for this has never been explained. The Faculty of Advocates considers that it cannot be explained.”

Citing last year’s Supreme Court ruling where the trade union Unison won its case that employment tribunal fees were unlawful, the faculty said the court had set out in the clearest terms why unimpeded access to justice was of vital importance to society at large.

The faculty added: “The Consultation Paper notes that the UK Supreme Court held that fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice.

“That is no justification for a regime aimed at recovering the whole cost of the courts, or as much of the cost as possible, from litigants rather than the taxpayer.

“In fact, one can infer from the judgments in Unison v Lord Chancellor that the UK Supreme Court would be likely to find such a fees regime illegal and ultra vires [beyond its powers].

“It should be noted that in Unison v Lord Chancellor there was no need for conclusive evidence that the fees in question had prevented people from bringing claims. It was enough to make a fees regime unlawful that there was a real risk that persons would effectively be prevented from having access to justice.

“Requiring litigants to pay court fees is likely to deter some individuals from pursuing legitimate actions.”

A Scottish Government spokesperson said: “Fees in Scotland remain significantly less than in England and Wales and those who cannot afford to make a contribution will continue to be protected by a generous system of exemptions.

“The Scottish Government’s consultation on court fees proposes a modest increase in existing fees, in line with inflation.

“Those proposals were informed by our consideration of issues arising from the UK Supreme Court ruling in Unison v Lord Chancellor, which related to employment tribunal fees.

“Careful consideration will be given to all responses to the consultation on court fees, prior to taking forward our proposals.”