Can I Recover Legal Expenses in a Scottish Civil Case? 

Facing a dispute can be expensive long before a case reaches a civil court. A homeowner arguing over a boundary, a business pursuing an unpaid invoice, or an employee raising a claim before a tribunal will often ask the same question. If the case succeeds, can the legal costs be recovered?

Understanding how judicial expenses operate in Scottish courts can make a significant difference to the decisions taken during a dispute. This article explains how expenses are dealt with in Scottish civil litigation, how courts decide who should pay them, and why recovering costs is rarely as simple as many people expect. 

What are judicial expenses in Scotland?

In litigation in Scotland, legal costs are generally referred to as judicial expenses. These include fees paid to a solicitor, court dues, counsel’s fees where appropriate and a range of disbursements incurred throughout a case.

Many clients are surprised to learn that recovering expenses does not automatically mean recovering every penny spent. The system is designed to allow expenses that are reasonable rather than every cost a party chooses to incur.

Are expenses always awarded to the winning party?

The general principle is that expenses are awarded to the successful party. In most cases, the court may grant an award in favour of the person who succeeds.

That said, the outcome is not automatic. A sheriff may examine the conduct of both sides. If behaviour has been unreasonable, or if part of a claim has failed, the court may make an order about expenses which differs from the usual rule.

How does a Sheriff Court decide expenses?

The Sheriff Court has broad discretion. The sheriff thinks about the conduct of parties, the value of the claim, settlement offers, and the procedural history of the action.

Civil procedure in Scotland allows the court to consider whether parties engaged with alternative dispute resolution before proceedings became necessary. Failure to do so can affect how expenses are awarded.

What is an award of expenses?

An award of expenses is an order requiring one party to contribute towards another party’s legal costs. Expenses are commonly awarded to the successful party, although exceptions arise.

Depending on the outcome, the pursuer and the respondent may each seek expenses. Sometimes expenses are awarded without a hearing, after procedural motions or settlement agreements.

How are court expenses calculated?

An account of expenses is usually prepared where the court has granted expenses. The level of expenses is then determined by a process called taxation.

The work involved, outlay incurred, legal research undertaken, and steps taken to prepare the case will all be considered. Expenses must be reasonable for conducting the proceedings properly.

What role does the Auditor of Court play?

The auditor examines the judicial account submitted following an award. In the Court of Session, the Auditor of Court performs this function.

An auditor considers whether charges claimed are reasonable and whether they relate to work carried out in respect of the proceedings. Items may be allowed, reduced, or disallowed entirely.

Can legal aid affect the recovery of expenses?

The Funding arrangements can impact recovery. The Scottish Legal Aid Board provides advice and help before the court to those who have been assessed to be eligible for legal aid.

The rules apply differently depending on the type of funding involved. A party litigant who has not employed a solicitor may also recover limited expenses in certain circumstances.

What happens in appeals and the Sheriff Appeal Court?

Where a decision is challenged, further expense can arise. Appeals may proceed to the Sheriff Appeal Court or, in some cases, the Court of Session.

The court and the sheriff’s appeal court retain discretion regarding expenses. Additional costs may be paid by the unsuccessful party, although each case turns on its own facts.

How do group proceedings and the Act 2018 affect expenses?

The introduction of group proceedings under the Act 2018 changed parts of Scottish civil litigation. These procedures allow multiple claimants to pursue related claims together.

New rules introduced under an Act of Sederunt and Rules 2019 created a framework for case management in larger actions. Part 6 contains provisions relating to expenses and funding considerations.

Can legal expenses insurance help fund litigation?

Before-the-event legal expenses insurance is commonly found within home, motor, and business policies. Many policyholders only discover the cover after a dispute develops.

Insurers will assess prospects of success, likely recovery, and whether a claim is affected by issues such as time bar or abuse of process. In practice, disputes often arise over whether cover should continue at a later stage of proceedings.

Policyholders are frequently entitled to recover expenses through insurance funding where policy conditions are met. There can also be questions about a client’s right to choose their solicitor, including whether litigation can be handled by their preferred solicitor instead of one appointed by an insurer.

Getting advice early can help you find funding, review litigation risk, and limit personal financial exposure before proceedings begin in Glasgow and throughout Scotland.

For guidance on civil litigation in Scotland, legal expenses insurance claims, debt recovery, property disputes, personal injury actions, commercial claims, or proceedings before a tribunal, SGT Law Firm can assess available funding options and explain the practical risks before a case progresses through the Scottish legal system.