Over the weekend, further detail emerged on Qualified One-way Costs Shifting (QOCS) in Scotland with publication of minutes from a Scottish Civil Justice Council (SCJC) meeting on 26 April at which certain remaining policy issues were decided. The final version of the court rules on QOCS in Scotland have still not yet been published, but will be laid before the Scottish Parliament, together with an accompanying policy note prepared by the SCJC, before the 30 June 2021 implementation date.
Our vlog of 12 May 2021 (link here) and blog of 13 April 2021 (link here) considered what was known, and what remained to be seen, on QOCS in Scotland at each of those dates. With the further detail now publicly available, we can answer, in broad policy terms, two of the questions which we posed about QOCS.
- QOCS & tenders (defenders’ judicial offers)? Under QOCS, tenders will still offer defenders costs protection against reasonable offers being refused or accepted late by pursuers. The rules will provide, in either instance that costs may be awarded in favour of a defender against a pursuer but will be capped at a flat rate of 75% of damages.
- QOCS & abandoned claims? This is to be a matter for judicial discretion on a case-by-case basis. Note that the usual rule up to now was that a pursuer who abandoned personal injury litigation should be required to meet the defender’s expenses (costs) up to that point.
The precise wording of the court rules remains to be seen as does the policy note referred to above, although these should be available in a few weeks and we’ll analyse them here when they are.
Although the imminent publication of the settled court rules on QOCS in Scotland will mark the end of the legislative phase, it is likely to take some time for a settled Scottish judicial consensus to emerge on the application of the rules in practice – perhaps particularly on the detail of the Qualifications and the mechanisms by which defenders make applications to establish a Qualification.
More generally, it will be important to observe how QOCS interacts with other aspects of the Scottish landscape for expenses in personal injury litigation, for example modification of costs due to non-compliant or unsatisfactory pre-litigation conduct, discretion generally and additional fees.