Qualified One Way Cost Shifting - Expected by Winter 2020
We may be in the midst of the global Covid-19 pandemic but the wheels of justice continue to turn in Scotland, albeit much slower than usual.
The Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (“the Act”) received Royal Assent on 5th June 2018. In 2013 Sheriff Principal Taylor’s Review of Expenses and Funding in Civil Litigation stated “in many cases there is a true David and Goliath relationship” where Pursuers tend to be individuals with little experience of the legal system, and Defenders tend to be large insurance bodies. The Act introduces Qualified One-Way Cost shifting (“QOCS”) in Scotland which is an attempt to address the apparent disparity between parties.
As things currently stand expenses normally follow success and if a Pursuer was unsuccessful at Court they would normally be ordered to pay their opponent’s expenses together with their own. QOCS provides that the Pursuer will not be liable to pay the Defenders’ expenses even if the Pursuer is unsuccessful. This provision is on the basis that the Pursuer conducts themselves in an appropriate manner. According to section 8(4) of the Act a person conducts civil proceedings in an appropriate manner unless the person or the person’s legal representative:
- makes a fraudulent representation or otherwise acts fraudulently in connection with the claim or proceedings;
- behaves in a manner which is manifestly unreasonable in connection with the claim or proceedings; or
- otherwise, conducts the proceedings in a manner that the Court considers amounts to an abuse of process.
On 5th May 2020,, the President of the Law Society of Scotland wrote a letter to the Lord President, The Right Hon Lord Carloway, raising concerns from personal injury practitioners about when QOCS would be introduced. It was stated that practitioners were concerned that QOCS “is taking longer to address than is necessary”.
In his response dated 13th May 2020 the Lord President confirmed that work is underway to implement QOCS and that he anticipates that QOCS will be in force “no later than winter 2020”.
Whilst this process is taking longer than expected this will be welcome news for personal injury practitioners that QOCS will come into force in the coming months.
Walker Laird handles a number of Personal Injury claims including claims arising out of Road Traffic Accidents, Medical Negligence, Accidents at Work and Slips/Trips. If you would like to discuss anything arising out of the implementation of QOCS or any personal injury claim please do not hesitate to give us a call on 0141 887 5271 or complete our online enquiry form and a member of our team will be in touch.
Can I sue my employer for personal injury when I signed a compromise agreement?
With ongoing employment uncertainty in Scotland and a possible rise in Compromise Agreements as a result of Covid-19 this is an important question. In short, you are not automatically barred from pursuing a personal injury action against an employer if you have signed a Compromise Agreement.
This issue was addressed recently by the Court of Session’s decision in the case of Troup v West Lothian Council (2020) CSOH 29. In that case Ms Troup (“the Pursuer”) had been employed by West Lothian Council (“the Council”) as a teacher between 2004 and 2017. The Pursuer raised a personal injury action against the Council alleging that she had suffered a major depressive disorder with anxiety as a result of the Council’s breach of duty by failing to take reasonable care for her mental health.
Prior to raising a personal injury action against the Council the Pursuer had raised a claim at the Employment Tribunal (4100245/2017). The tribunal claim was brought under the Equality Act 2010 and the Pursuer alleged that (i) she had suffered discrimination by reason of her disability; (ii) the Council had failed to make reasonable adjustments; and (iii) she had suffered harassment as a result of her disability.
The Employment Tribunal claim was settled by way of a compromise agreement which contained the following clause which excluded:
“any claim related to accrued pension rights and any claim for damages for personal injury which may be brought within the ordinary civil courts of Scotland arising from circumstances occurring prior to 12 May 2017.”
After the Pursuer raised her personal injury action the Council alleged that the Pursuer was personally barred from raising this action against them in light of the compromise agreement previously entered into.
Lord Mulholland stated that settlement agreements entered into between parties to settle claims extra-judicially are binding contracts. The compromise agreement in this case was no different. However, the question in the present case, according to Lord Mulholland, was whether the present personal injury action was covered by the compromise agreement.
Lord Mulholland held that the nature of proceedings in the Employment Tribunal Claim and personal injury action were different. He rejected the Council’s plea of personal bar and held that there was no “ambiguity in the wording” of the exclusion clause. The Pursuer was therefore not barred from raising a personal injury action against the Council.
Therefore, it is important to note that clients should not presume that by signing a Compromise Agreement they are necessarily barred from pursuing a personal injury action against an employer.
Contact Our Team
Our Personal Injury team led by Michael Wilson is well placed to advise whether you are able to make a personal injury claim as a result of an accident at work.
Please contact Michael now on 0141 887 5271 or email him at michael.wilson@walkerlaird.co.uk and he’ll be in touch.