Another self-promotional blog post. I am not even sorry. This is because the post relates to a co-authored article I am pretty proud of. This is accordingly one of those sign post blog posts that I sometimes do. In this I will explain the paper very briefly, and also try to shed a bit of light on the background to it and the associated writing process.
The newest issue of the Edinburgh Law Review appeared online today. (Yes, I have been refreshing EUP’s web page for past few days to check up on this, thanks for asking.) It has an article by Ben Christman and yours truly, about the ongoing deployment of the “full cost recovery” policy in the Scottish courts system.
Full cost recovery – that is to say, the costs of civil justice being passed to the users of the service (subject to certain recognised exemptions) – is something I first wrote about back in 2018: see the postscript to this online Journal of the Law Society of Scotland article. I always felt there was more to be said on this topic than that postscript though, and Ben agreed. Ben and I both sit on the Access to Justice Committee of the Law Society of Scotland, and I think it would be fair to say that this blithe commoditisation of civil justice is something that rankled both of us. As such, in addition to signing up to the committee’s response to the Scottish Government’s most recent consultation on court fees (which fees, needless to say, were increased), we felt we might have a go at putting a paper together on the matter. This we duly did, and the co-authorship process worked pretty smoothly. (I just hope Ben agrees with that… One thing I will say with impunity though is a useful feature of co-authorship is that if you do not produce the goods, you are not just letting yourself down. This is a quite a motivator.) Before too long, we had a paper that we wanted to find a home for.
Owing to the Scottish lens we used for our analysis, and in part because of my own involvement with the Scottish journal the Juridical Review’s editorial team (i.e. to absolutely ensure this was arm’s length – sorry, Juridical Review colleagues), we thought we would try to get this paper published in the Edinburgh Law Review. We submitted it and happily the editor of that journal, Laura Macgregor, got in touch with us to confirm she was willing to accept our article, subject to some wee changes suggested in the peer review process (thanks to person(s) unknown for that input). The paper also benefited from comments provided by reviewers involved in the REF process (the academic research exercise that UK universities are involved with), in terms of the internal review that went on at both my former and current employers; I think this means I can actually be described as a satisfied REF customer on this occasion. Thanks to those persons unknown as well. In terms of the actual people I can publicly express my gratitude to, thanks of course to Laura, and also to my former colleagues Robert Taylor, Donna McKenzie Skene and Alisdair MacPherson for their insights at various stages in the paper’s development.
Here is the abstract of the paper:
In Scotland, there has been an increasing trend for the costs associated with the administration of civil justice to be met by the users of the court system. Such a policy can broadly be referred to as “full cost recovery”. A recent Scottish Government consultation on court fees uncritically continued with this overall approach, but various consultees nevertheless took the opportunity to critique full cost recovery in the context of that consultation and more generally. This article takes up that analysis, in a manner that should also be of interest to non-Scottish readers who may be contending with a similar challenge in another jurisdiction, by critiquing full cost recovery in principle and by offering potential routes by which its implementation might be challenged. It begins by explaining what full cost recovery actually is and investigating its origins, before interrogating some of the assumptions or acquiescence that seems to have developed around the issue and discussing the potential for litigation against court fees in Scotland.
For those unable to access the Edinburgh Law Review (for example via an academic institution), here is a link to an open access “pre-print” of the article hosted by the academic repository at the University of Aberdeen.
UPDATE 18 February 2020: The Journal of the Law Society of Scotland now has a related “Opinion” on this topic, available here.