Out of COVID-19 lockdown and into new territory? QOCS is still coming to Scotland…

By Scottish Ministerial order, Qualified One-way Costs Shifting (QOCS) is to apply to Scottish personal injury claims – including disease claims and fatality claims – litigated from 30 June 2021. To recap, QOCS is a departure from the usual ‘loser pays’ approach to legal costs and expenses. The guiding principles of QOCS are (i) promoting access to justice in these types of case by generally protecting losing pursuers (hence ‘one way’) from having to meet successful defenders’ costs and (ii) at the same time enabling the removal of that protection in limited specific circumstances (hence ‘qualified’).

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Prison assault cases reinforces approach to valuing damages for multiple injuries

The recent case Newell v Ministry of Justice arose out of a very violent attack by one inmate of a secure prison unit on another. The seriously injured claimant took an action against the MoJ (which is responsible for running prisons) alleging its negligent failure to supervise his assailant properly in light of the risk that he (the assailant) presented. The fact that Newell, a convicted murderer, succeeded in his claim and was awarded £85,000 (plus interest) for his injuries seems largely to have escaped, so far, the attention of the tabloid press. The judge’s approach to quantifying damages for multiple injuries may be of greater interest to an audience from the claims sector.

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The interim discount rate is just as flawed as the notional 2.5% rate it temporarily replaces

The move last week by the DoJ NI to set an interim discount rate might look like progress, but really it’s stepping back in time 25 years. The 1996 Act which the DoJ has triggered to set its interim rate of -1.75% is totally out of date and was replaced in both England and Scotland two years ago.

It was widely recognised that the rate in NI of 2.5% based on the Act needed changing because it would systematically under-compensate a significant proportion of plaintiffs. But setting an interim rate under the same flawed Act simply swings the pendulum much too far in the opposite direction and will lead to over-compensation in more than 90%* of claims. That level of excess will cost tens of millions of pounds for NI businesses and taxpayers and those additional costs will continue be felt until the new Bill – which the Committee for Justice has chosen to scrutinise until Hallowe’en – comes in. That should bring stability to this area with something of a ‘Goldilocks’ discount rate being set under the new law: not too high, not too low, but just right.

           [* See figure 1 at page 18 of the Government Actuary’s advice to the Lord Chancellor in June 2019.]

Alistair Kinley, Director of Policy & Government Affairs