One-way Costs Shifting (QOCS): a developing story north & south of the border

Scotland

In a letter of 13 May 2020 to the-then President of the Law Society of Scotland, the Lord President – writing as Chair of the Scottish Civil Justice Council – anticipated that QOCS would be in force in Scotland “no later than winter 2020.”

QOCS changes the idea that costs in litigation usually follow the event (also known as ‘the ‘loser pays’ principle). Under QOCS, a successful defender in a personal injury claim (defined to include disease and fatal cases) will not generally be awarded costs against an unsuccessful pursuer – hence ‘one-way’ – but costs may be awarded by exception – hence ‘qualified’ – if the pursuer has acted or behaved in inappropriate ways specified in costs legislation and in rules of court.

QOCS is intended to address a perceived need to enhance access to justice and to prevent potential liability for the other side’s costs being a barrier to individuals bringing cases. It was a key recommendation of the Jackson Review of Civil Litigation Costs in England which was published in 2009 and implemented in 2013.

Its Scottish origin is Sheriff Principal Taylor’s 2013 Review of Expenses and Funding of Civil Litigation in Scotland. This review postulated ‘the defenders in virtually all personal injury actions are, in reality, insurers. There is thus what Lord Justice Jackson described as an asymmetric relationship between the pursuer and the defender. In many cases there is a true David and Goliath relationship.’ To address this perceived imbalance of power or inequality of arms, the review concluded ‘there should be qualified one way costs shifting, whereby an unsuccessful pursuer will not be liable for the expenses of a defender except in exceptional circumstances.

The necessary legislation – The Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 – was enacted five years after the Taylor review and sets out three circumstances in which the one-way costs shift is to be dis-applied. Those are where the pursuer, 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.

The Scottish Civil Justice Council continues to work on detailed rules of court which will set out additional qualifications to the costs shift and also regulate certain aspects of the operation of QOCS in practice. Notably, the rules will address the interaction of QOCS with tenders (defenders’ judicial offers) and, separately, abandonment of a case by a pursuer.

Differences compared to England & Wales

QOCS has been an integral part of the English costs rules since the Jackson reforms were implemented as a whole on 1 April 2013. The underlying policy justification for QOCS south of the border – access to justice and a perceived imbalance of power because of the asymmetric nature of personal injuries litigation – are the same as for Scotland, but there are significant differences in application and detail.

One subtle but important difference of principle is that the English regime of QOCS does not prevent costs awards being made against unsuccessful claimants. Instead, it puts in place controls against their enforcement by defendants. This means that costs orders in both directions may continue to be made during the life of a claim, which raises the prospect of setting them off against each other at the conclusion of the case. Oddly, however, the English QOCS rules are silent on setting off costs against costs and refer only to setting off against damages and, some seven years on, the point has yet to be judicially resolved.

On matters of detail, the ‘fraud’ point in England turns on the claim being found to be “fundamentally dishonest”. Scotland has no direct statutory equivalent, hence the apparently similar Scottish qualification uses the single word “fraudulent”, perhaps suggesting there might be no inquiry as to the degree of the fraud? It remains to be seen how the Scottish courts will tackle the practical interpretation of “fraudulent representation” in this context as it is not defined further in the legislation.

The English rules do not have a qualification for “manifestly unreasonable” litigation behaviour. Although unreasonable conduct is used in other areas of costs, for QOCS purposes it was regarded as being a wide formulation which would risk satellite litigation. The much narrower test that the claimant had “disclosed no reasonable grounds for bringing the proceedings” was adopted instead. The two regimes appear however to be the same in so far as in both the costs protection afforded by QOCS is lost where the court finds there is an abuse of process.

Conclusion

In the absence of widespread civil legal aid, the adoption of QOCS in both jurisdictions is a practical solution to restrict the exposure of injured claimants/pursuers to the costs of losing their case. In general, both jurisdictions have sought to implement frameworks in which those who play by the rules can expect to be protected. What will be revealed when the QOCS provisions for Scotland are published is just how different these rules will be.


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Fiona McEwan, Associate, BLM

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Alistair Kinley, Director of Policy & Government Affairs alistair.kinley@blmlaw.com

 

Draft Third Parties (Rights Against Insurers) Act 2010 (Consequential Amendment of Companies Act 2006) Regulations 2018

Yet another gripping headline to draw in the reader of this blog … but despite the arcane title and multiple brackets these new regulations are worth knowing about. What they’ll do when implemented is to rectify a barrier to rights of recovery after an insurance policy covering a dissolved, insolvent or otherwise no-longer-existing insured has responded to a third party’s claim. Continue reading

Qualifying QOCS

It may be surprising that some details of Jackson costs reforms are still being refined in the courts more than five years after they were first implemented in April 2013. Adam Burrell explains the very recent decision in Budana v Leeds Teaching Hospital here. The case deals with success fees and assigned cases, but this post examines two cases on Qualified On-way Costs Shifting, QOCS.

The first is Howe v MIB, which we commented on here earlier in the year. We have since obtained a copy of the supplementary judgment*, available here, in which Lewison LJ explains why a costs set-off can and should co-exist alongside QOCS:[counsel for the claimant] submits that a set-off is enforcement and that set-off is only permitted against orders for damages and costs.  I do not agree. First, under the general law, set-off is not a species of enforcement … Sir Rupert Jackson envisaged that costs protection similar to Legal Aid’s cost protection should be given to claimants with QOCS.  The law in force at the time permitted set-off of costs against legally aided litigants and Sir Rupert made no recommendation to change that.  Moreover, Sir Rupert also envisaged that claimants would pay their own disbursements, so that, at least to some extent, unsuccessful claimants might end up out of pocket.  To allow set-off of costs would not, in my judgment, go against the thrust of his recommendations, and I do not consider that there is anything in the detailed rules setting up the QOCS regime which disapplies the court’s power to order set-off.”

This passage confirms, as was noted in our earlier piece about Howe, that the County Court decision in Darini v Markerstudy that QOCS was a form of costs enforcement should no longer be regarded as correct. 

The second case is Mabb v English, a decision of Jay J given on 6 December 2017 and in which the full judgment has yet to be published. The underlying action was a clinical negligence claim. The defendant clinician applied to strike it out on the grounds that it had no reasonable prospects of success. This was refused and the defendant appealed, at which point the claimant discontinued. By so doing she would benefit from QOCS protection, but if her claim was struck out she would lose it (CPR 44.15(a)). The defendant argued that the discontinuance should be set aside as it was an abuse of process which prevented him from recovering his costs.

Jay J refused to set the discontinuance aside. He recognised that the court had a discretion in CPR 38 to do so, which should be exercised to give effect to the overriding objective, i.e. to deal with cases justly and at proportionate cost. But it was not, on these facts, an abuse of process to take steps to avoid a costs liability and the claimant was not required to give a reason for discontinuing. The combination of CPR 38 & 44 meant that there were circumstances in which a defendant could lose the chance to secure an exception to the QOCS rule. That outcome was not inherently unfair in the present case.

We will post a link to the judgment in Mabb as soon as it is made available.

*© Crown copyright 2017. Contains public sector information licensed under the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/).


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Written by Alistair Kinley, director of policy and government affairs at BLM.