Qualified One-way Costs shifting (QOCS) was introduced in April 2013.
In traditional Scottish civil courts, the principle was that the loser would need to pay the legal costs. However, the introduction of QOCS has changed this norm. Under QOCS, if a person bringing a personal injury claim (pursuer) loses the case, they are generally not required to pay the legal costs of the other party (defender). The purpose of QOCS is to make justice more accessible by alleviating the fear of financial consequences for unsuccessful claimants.
Exceptions to QOCS
While QOCS is a general rule, there are exceptions. QOCS applies only when the claimant and their legal representative conduct themselves appropriately. The Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 outlines the exceptions:
Fraudulent Representation: If a person makes a fraudulent representation or acts fraudulently in connection with the claim, QOCS may not apply.
Manifestly Unreasonable behaviour: QOCS may not apply if the claimant behaves in a manner that is obviously unreasonable, such as consistently failing to appear in court or providing incorrect information.
Abuse of Process: Bringing a case to court with no feasible prospect of success or deliberately deceiving the court may result in QOCS not applying.
Interpreting Exceptions: Case Examples
Manifestly Unreasonable Behaviour:
In the case of Lennox vs Iceland Foods, the court clarified that “manifestly unreasonable” behaviour has a high threshold and is exceptional. Failing to appear at court hearings, as seen in Murray vs Boots, can meet this standard. Similarly, in John Carty vs Churchill, consistently failing to respond to correspondence and missing court deadlines was deemed manifestly unreasonable.
Abuse of Process:
Abuse of process involves compromising the court’s integrity or bringing a baseless case. In Lennox vs Iceland Foods, despite the defender’s successful defence, the court did not find the pursuer’s actions to be an abuse of process.
Fraudulent Representation:
In Gilchrist vs Chief Constable of Police Scotland, the court emphasised that making a fraudulent representation requires knowingly telling a lie. Mere preference for one party’s version of events does not constitute fraudulent representation.
Additional Exceptions:
The Act of Sederunt (Qualified One-Way Costs Shifting) 2021 outlines further exceptions, including the pursuer’s failure to obtain damages higher than a tender offered by the defender, unreasonable delay in accepting a tender, and abandonment of the action or appeal.
Conclusion: Striking a Balance
The tests to disapply QOCS protection are deliberately high to uphold the legislation’s purpose of facilitating access to justice. As cases unfold, the boundaries for exceptions become clearer. Notably, courts emphasise that each case is unique, requiring consideration of its specific facts. While there is ongoing activity and development in this area of law, over time, the rules are expected to settle as clearer boundaries are identified. QOCS, with its exceptions, seeks to strike a balance between protecting claimants from the financial burden of litigation and preventing abuse of the legal system.
Gildeas Solicitors have offices in Glasgow and Edinburgh and specialise in personal injury cases, including road traffic accidents.
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Written by Pierre Gillespie