Qualified One-way Costs Shifting (QOCS) is still coming to Scotland – but delayed now until June 2021 at least. Under QOCS, a successful defender in a personal injury claim will not generally recover costs from an unsuccessful pursuer, i.e. usual loser pays / costs follow the event approach doesn’t apply and the costs are shifted only “one-way”. However there are exceptions to this which make it “qualified”. The exceptions apply where the pursuer acts or behaves “inappropriately” as defined in costs legislation or in rules of court. For the purposes of QOCS, “personal injury” is widely defined as including “any disease and any impairment of a person’s physical or mental condition.” QOCS will also apply to fatal claims.
The latest information on timing of the implementation of QOCS in Scotland comes from a newsletter of 29 January 2021 (link here) issued by the Scottish Civil Justice Council (SCJC). Though couched in contingent and guarded language, the indication is that the rules of court needed to facilitate the operation of QOCS in practice will be published in mid-March 2021, with QOCS coming into force three months later in mid-June 2021. It remains to be seen whether this latest anticipated timescale is met.
On the defenders’ side, there will be considerable focus on the qualifications once QOCS is in force. Three of the qualifications are already known because they are set out in the primary legislation of 2018 and are where the pursuer (claimant), or his or her legal representative:
- makes a fraudulent* representation or otherwise acts fraudulently* in connection with the claim or the proceedings, [*to be proven on the balance of probabilities]
- behaves in a manner which is manifestly unreasonable in connection with the claim or the proceedings, or
- otherwise, conducts the proceedings in a manner that the court considers amounts to an abuse of process
Further qualifications are to be provided for in the rules of court and will include the interaction of QOCS with tenders (defenders’ judicial offers) and, separately, abandonment of a claim by a pursuer. The rules are yet to be finalised and made public, but the nature and extent of these qualifications as they apply in practice looks very likely to be explored in litigation – as has been the case in England & Wales following the introduction of QOCS in 2013.