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Chamber

Meeting of the Parliament 26 April 2018

26 Apr 2018 · S5 · Meeting of the Parliament
Item of business
Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill: Stage 3

I refer members to my entry in the register of interests. Members will note that I am a member of the Law Society of Scotland and that I hold a current practising certificate, albeit that I am not currently practising.

Amendment 34, in the name of Margaret Mitchell, would include in the bill certain requirements for a success fee agreement to be enforceable. I ask members not to agree to the amendment, as it would undermine the principle of an independently regulated legal profession. The provisions in the amendment are also unnecessary—I will deal with that in a moment.

Turning to the first point, the amendment would mean that substantial provisions about solicitors’ professional obligations would be fixed in primary legislation rather than in Law Society rules, which, aside from any other consideration, are much more flexible when it comes to updating and so forth. The amendment therefore appears to strike at the heart of an independent Law Society and does not take account of the principle that professional rules are best made by a professional body.

Sheriff Principal Taylor has commented that he believes that the second part of the amendment in particular is impractical. As Daniel Johnson mentioned, a number of cases still settle at the eleventh hour and at the door of the court. Sheriff Principal Taylor believes that paragraphs (b)(i) and (b)(ii) of the amendment would be difficult to comply with, and points out that a solicitor is already under an obligation to comply with the provisions in paragraphs (b)(iii) and (b)(iv), which the amendment would require to be certified. If the provisions are inserted into primary legislation, there is also a question of who will be responsible for regulating them. As it stands, it is not clear from the amendment that the Law Society would have that responsibility, so that is a matter of uncertainty.

It is a fundamental principle of maintaining an independent legal profession that no state interference or influence is exerted. The Scottish Government is committed to the principle of an independent profession, and I ask the Parliament to support that principle. It is well known that, as I said, Scottish solicitors are already required to act in the best interests of their clients at all times and must ensure that their clients understand fee arrangements and give informed consent.

Success fee agreements are not new; indeed, they have been in place in some form since the 1990s, and any theoretical conflicts and other issues have not prevented speculative fee agreements from being rolled out since that time. Where the provider of relevant services is a claims management company, it will of course fall under the regulation of the Financial Conduct Authority.

The Law Society has set up a working party that is considering success fee agreements, what provision should be made in Law Society rules and guidance to govern their terms and any other relevant issues. I understand the motivation behind Margaret Mitchell’s amendment 43, and I undertake to write to the Law Society to draw its attention to the points that the amendment raises. The Scottish Government will of course work with the Law Society as the bill is implemented to seek to ensure that the provisions relating to success fees are implemented in a way that best gives effect to the principles of the bill.

In summary, amendment 34 provides for matters that should not be set out in primary legislation, that risk undermining the principle of an independently regulated legal profession and that are more appropriately handled in rules and guidance that are provided by the Law Society of Scotland in its capacity as regulator of solicitors. Hence, I ask Margaret Mitchell to consider withdrawing amendment 34.

In the same item of business

The Deputy Presiding Officer (Christine Grahame) SNP
The next item of business is consideration of stage 3 amendments to the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill. In dealing with am...
The Deputy Presiding Officer SNP
I call group 1. Amendment 34, in the name of Margaret Mitchell, is the only amendment in the group.
Margaret Mitchell (Central Scotland) (Con) Con
For an ordinary member of the public, understanding civil litigation can be a complex and confusing process. The Civil Litigation (Expenses and Group Proceed...
Daniel Johnson (Edinburgh Southern) (Lab) Lab
I share many of Margaret Mitchell’s concerns, and it is important to note her comment on the proposals in the bill being about increasing access to justice. ...
Liam McArthur (Orkney Islands) (LD) LD
Like Daniel Johnson, I think that Margaret Mitchell very fairly identified an issue. Access to justice is predicated on there being a level of transparency a...
The Minister for Community Safety and Legal Affairs (Annabelle Ewing) SNP
I refer members to my entry in the register of interests. Members will note that I am a member of the Law Society of Scotland and that I hold a current pract...
Margaret Mitchell Con
A number of points have been raised. Daniel Johnson said that the amendment might prohibit settlements at the court door, but there is nothing to prevent a p...
The Deputy Presiding Officer SNP
The question is, that amendment 34 be agreed to. Are we agreed? Members: No.
The Deputy Presiding Officer SNP
There will be a division. As this is the first division of the stage, the Parliament is suspended for five minutes. 14:44 Meeting suspended. 14:49 On resum...
The Deputy Presiding Officer SNP
We will proceed with the division on amendment 34. For Balfour, Jeremy (Lothian) (Con) Ballantyne, Michelle (South Scotland) (Con) Bowman, Bill (North Ea...
The Deputy Presiding Officer SNP
The result of the division is: For 29, Against 84, Abstentions 0. Amendment 34 disagreed to. Section 4—Power to cap success fees
The Deputy Presiding Officer SNP
We come to group 2. Amendment 5, in the name of the minister, is grouped with amendments 6 to 8, 13 and 14.
Annabelle Ewing SNP
Amendments 5 to 8 are technical in nature. We have been working with Her Majesty’s Treasury on the United Kingdom Financial Guidance and Claims Bill, which w...
The Deputy Presiding Officer SNP
We move to group 3. Amendment 1, in the name of Daniel Johnson, is grouped with amendments 2, 2A, 3 and 4.
Daniel Johnson Lab
I will speak to amendments 1 to 4 in my name and against Margaret Mitchell’s amendment 2A. I apologise in advance, Presiding Officer, as these are complex a...
Margaret Mitchell Con
Amendment 2A would amend amendment 2, in the name of Daniel Johnson, the effect of which would be to remove the ring fencing of future loss that was agreed t...
Daniel Johnson Lab
Does the member recognise that the awarding of additional fees, as she has set out and which she is setting a great deal of store by, is done in only 5 per c...
Margaret Mitchell Con
We are looking at legislation in which it is clearly set out that those cases are very complex, and the award amounts that we are talking about refer specifi...
Liam McArthur LD
It is difficult to admit that we got it wrong, but I think that that is exactly what all of us on the committee did at stage 2. There are mitigating circumst...
John Finnie (Highlands and Islands) (Green) Green
I associate myself with the comments of my colleagues Daniel Johnson and Liam McArthur. I am prepared to say that it is important that we constantly reflect ...
Liam Kerr (North East Scotland) (Con) Con
I will speak against amendments 1 and 2. If amendment 2 is agreed to, we will support amendment 2A. I confirm that we will vote for amendments 3 and 4. At t...
Daniel Johnson Lab
Would Mr Kerr not recognise that the proportions that are charged under success fee agreements at the moment can be as high as 60 per cent, as Liam McArthur ...
Liam Kerr Con
I will come back to that point, but I want to deal with a point that Daniel Johnson made earlier. He criticised the insurance industry for allegedly wishing ...
Annabelle Ewing SNP
What evidence can the member cite to support that claim? He will be aware that it has been refuted by, for example, the Association of Personal Injury Lawyers.
Liam Kerr Con
That is quite so but, in committee, we received a variety of evidence that suggested that there was a possibility of that happening and that it had happened ...
Annabelle Ewing SNP
I rise to support Daniel Johnson’s amendments 1 to 4. The bill as introduced followed Sheriff Principal Taylor’s recommendation that an award for future loss...
Liam Kerr Con
In those conversations with solicitors firms, did many of them report back that, if the future loss was ring fenced, they would cease to act in personal inju...
Annabelle Ewing SNP
We have to look at the facts that are before us and listen to the evidence that has been submitted to me as the minister and to the committee. People are tel...
Margaret Mitchell Con
Does the minister acknowledge that the situation in England and Wales is not analogous with the situation in Scotland, and that we are not comparing apples w...
Annabelle Ewing SNP
I have already dealt with that point. Notwithstanding the issue about judicial expenses, the architect of the policy south of the border has effectively reca...