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’).

Significant aspects of the required court rules on QOCS remain under active and ongoing consideration at the Scottish Civil Justice Council (SCJC). Among other things, the court rules are likely to set out how QOCS will interact with tenders (defenders’ judicial offers) and, separately, abandonment of a claim by a claimant / pursuer.

In a newsletter issued on 9 April 2021 (link here), SCJC explained that they “will convene a virtual meeting on 26 April 2021 to consider a draft rules instrument regulating procedures for QOCS.”  

Detailing the qualifications to QOCS in Scotland gives rise to a number of jurisdictionally-unique questions, including:

  • In what ways might a claimant make “a fraudulent representation” in connection with a Scottish personal injury claim or court action?
  • What does “manifestly unreasonable” behaviour by a claimant look like?
  • What amounts to an “abuse of process” under Scots law?
  • What will become of the costs effects of defenders’ judicial offers in a Scottish QOCS landscape?
  • Will the new landscape retain, unaltered, the default Scottish rule that a pursuer who abandons personal injury litigation should be required to meet expenses (costs) up to that point?

An effective QOCS regime cannot be a charter for making speculative claims with impunity and must have meaningful disincentives against poor litigation conduct. It seems inevitable, therefore, that in a Scottish QOCS landscape, the apparent traditional judicial reticence to confront, head-on, issues of honesty in personal injury litigation is likely to be re-tested. Novel questions, particularly around the new and undefined language of Scottish QOCS, are also likely to be posed for judicial determination.

We have been assessing the possible answers to the evolving questions above over the last ten years, both before and after publication in 2013 of the Scottish expenses review. Our experience in dealing with Scottish claims in which fraud is suspected, and in Scottish litigation involving novel questions of costs, is shaping our preparations and assisting clients. We have also been drawing on our colleagues’ experiences of QOCS in England & Wales. QOCS was established there, as part of a package of reforms, in 2013 yet continues to test the courts, particularly in the context of “fundamental dishonesty” and set-off of costs.

Please feel free to get in touch if you would like to hear more.

Kelly Brotherhood, Associate
BLM Scotland

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