Court fees
Section 107 – Power to provide for fees for SCTS, court clerks and other officers
189.Section 107 effectively restates and modernises the power conferred on the Scottish Ministers by section 2 of the Court of Law Fees (Scotland) Act 1895. Section 2 of the 1895 Act is consequentially repealed by schedule 5, paragraph 26. This consolidates and updates the law, for example by enabling an order on court fees to explicitly revoke an earlier order by virtue of section 6 of the Interpretation and Legislative Reform (Scotland) Act 2010.
190.This power permits the Scottish Ministers to set the fees that may be charged by the SCTS and (what the section describes as) “relevant officers” in relation their functions in providing court services. The power permits the Scottish Ministers (by order subject to the negative procedure) to make provision exempting persons from fees and provides that there may be different fees for different courts and types of proceeding. Subsection (4) permits the Scottish Minsters to modify the list of courts or officers covered by this section, by order. Such an order is subject to the affirmative procedure.
Section 108 – Sanction for counsel in the sheriff court and the Sheriff Appeal Court
191.Section 108 sets out the test to be applied by a court in considering whether to grant sanction for the employment of counsel (that is to say advocates or solicitor advocates) in the sheriff court and the Sheriff Appeal Court, when determining the level of expenses which may be due. In terms of this test, the court is required to sanction the employment of counsel if it considers that to do so is reasonable in all the circumstances of the case. In deciding whether granting sanction would be reasonable, the court must have regard to the criteria set out in subsection (3), which include “the desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel”. The Court of Session is able to modify these provisions through court rules made in an act of sederunt under section 104(1) or section 106(1) of the Act. Generally, the expectation is that solicitors will conduct sheriff court and Sheriff Appeal Court litigation (without prejudice for arrangements for party litigants or lay representatives).
