Changes afoot for civil litigation expenses

Following a debate in the Scottish Parliament on 16th January 2018 the long-awaited Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill (“the Bill”) passed stage 1 of the pre-legislative consultation process.  The Bill seeks to continue the recent legislative process of Court reform in Scotland and it seeks to implement recommendations made by Sheriff Principal Taylor in his 2013 Review of the Expenses and Funding of Civil Litigation in Scotland.

Most notably, the Bill proposes to introduce Qualified One-Way Costs-Shifting (QOCS) which provides that the Pursuer in a personal injury action will not be liable to the Defender in expenses.  This provision is on the basis that the Pursuer conducts themselves in an appropriate manner.  According to the Bill a Pursuer not conducting themselves in an appropriate manner is a Pursuer that has made a fraudulent misrepresentation, has committed an abuse of process or has behaved in way which falls below the standard reasonably expected of them in civil proceedings.

The Bill’s principal policy objective is to improve access to justice.  The rate of claims per head of population in Scotland remains well below that in England and it is thought that the fear of an adverse award of expenses inhibits people from exercising their legal rights.  It has been argued that QOCS will help improve access to justice by addressing the David and Goliath relationship between Pursuers, who tend to be individuals with little experience of the legal system, and Defenders, who tend to be insurance bodies.  According to the Scottish Parliament’s Justice Committee thousands of people living in Scotland could benefit from these sweeping changes enabling them to litigate without fear.

As The Bill moves forward into Stage 2 of the pre-legislative consultation process it is hoped that the Bill will help to create a more accessible, affordable and equitable justice system.  Time will no doubt tell.