The court possesses an inherent power to make awards of expenses as it sees fit, in accordance with the principles of fairness and reasonableness and provided that in doing so it does not breach any statutory provision, such as the rules on Qualified One-Way Cost Shifting.

To that end, the court has always had the power to reflect its displeasure at the way a litigation is conducted through an award of expenses. This can be against a party to the action or against a legal representative. The power to make an award against a legal representative tends to arise relatively infrequently and only in the context of reprehensible conduct that has needlessly wasted time and expense.

At the time of publication, s. 11 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 has yet to come into force. Section 11 is in the following terms:

An Act of Sederunt has been in draft form since 2019 but never completed. It is anticipated that it will amend the rules of the Court of Session, Ordinary Cause Rules, Sheriff Appeal Court Rules, Simple Procedure Rules and Summary Cause Rules by:

• (1) permitting the court to find a legal representative liable for expenses incurred by a party where the representative is guilty of a serious breach of their duties to the court and the expenses are attributable to that breach;

• (2) restricting the amount to the level of expenses incurred by a party who has suffered the loss attributable to that breach of duty;

• (3) permitting the court to make an order for expenses: (a) on its own account; or (b) on the motion of a party for whom the representative does not act, and never has acted;

• (4) providing for a hearing to be fixed to allow the representative, and any party, to be heard on the matter, with written submissions being lodged in advance.