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.