Success Fee Agreements in Scotland

Overview

'Success fees' are the fees charged by a solicitor or claims management company for acting for an individual in civil cases, often known as 'no-win, no-fee' cases.

The Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 ('the Act') introduces caps on the percentages that the service providers can charge. The Act gives the Scottish Minsters power to set the caps. The first part of the consultation is about what levels those caps should be set.

One type of 'no-win, no-fee' agreement is a damages based agreement or DBA. Historically, only claims management companies have been able to offer DBAs in Scotland. The Act makes it possible for solicitors to also offer DBAs. However, not all types of cases are suitable to be funded in this way, for example some types of family proceedings. The second part of the consultation seeks views on what types of proceedings are not suitable to be taken forward as DBAs.

The Act gives the Scottish Ministers power to make further provision about success fee agreements by regulations. The third part of the consultation gives opportunity to comment on the form and content of success fee agreements.

Why your views matter

The amount charged by service providers in success fee agreements varies considerably at present. The Report of the 'Review of Expenses and Funding of Civil Litigation in Scotland' made a recommendation of what the caps should be. The Scottish Government seeks the views of service providers and prospective litigants as to whether the recommended caps are equitable or whether different caps should be considered.

The Bill as introduced excluded family proceedings from success fee agreements. However, one stakeholder noted that one type of success fee agreement - the speculative fee agreement - was used in such cases. The Bill was amended by removing that exclusion and giving a power to the Scottish Ministers to decide what exclusions there should be. The consultation will allow the legal profession to make its views known.

Success fee agreements will need to conform to certain standards. The Scottish Ministers have a power in the Act to stipulate what the agreements must contain. The consultation will allow the legal profession and other service providers to contribute their views as to the content required in such agreements.

At the end of the consultation, the responses will be analysed and the analysis published together with the Scottish Government response. Regulations will be drafted and these will take account of the consultation responses.

Download the consultation paper.