By David Stoker, Senior Underwriter
(Estimated reading time: 4 minutes, 2 seconds)
New rules introduced into Scottish courts meant that from 30 June 2021 the majority of parties seeking damages for clinical negligence and personal injury claims will not be liable for the expenses of their opponent, if their action fails.
This article seeks to briefly explain the new rules in relation to QOCS and the potential risks which a Pursuer still faces. We have also taken an early view on how it is working in Scotland from practitioners.
The QOCS regime has been introduced under the Act of Sederunt (Rules of the Court of Session 1994, Sheriff Appeal Court Rules, Sheriff Court Rules Amendment) (Qualified One-Way Costs Shifting) 2021. Click here for detail of the Act itself.
The situations where QOCS can be dis-applied or disregarded is similar to that in England and Wales; the test in the Scottish courts will be whether or not a Pursuer has acted in an appropriate manner. Section 8(4) (a) to (c) of the Act outlines what the court will examine, namely;
A person will be deemed to have conducted the proceedings in an appropriate manner unless they or their legal representative, conduct themselves as follows:
(a) make a fraudulent representation or otherwise act fraudulently in connection with the claim or proceedings (which will be judged on the standard of proof of the balance of probabilities),
(b) behave in a manner which is manifestly unreasonable in connection with the claim or proceedings, or
(c) otherwise conduct the proceedings in a manner that the court considers to be an abuse of process.
Case law may well be required to accurately interpret what exactly constitutes ‘manifestly unreasonable’ and ‘unreasonable delay’ as outlined below. Readers will note Fundamental Dishonesty as used in England and Wales is replaced by Appropriate Conduct here.
The other factors which could lead to the dis-application of QOCS are found in paragraph 2 outlined in page 6 of the Act, namely;
(2) The grounds specified in this paragraph, which are exceptions to section 8(2) of the Act, are as follows—
(a) failure by the pursuer to obtain an award of damages greater than the sum offered by way of a tender lodged in process;
(b) unreasonable delay on the part of the pursuer in accepting a sum offered by way of a tender lodged in process;
(c) decree of absolvitor or decree of dismissal has been granted against the pursuer in terms of rule 17.2(3)(b) (applications for summary decree)(e);
(d) abandonment of the cause in terms of rule 23.1(1), or at common law.
What is the view among practitioners?
Clinical Negligence (CN) and Personal Injury (PI) practitioners in Scotland tell us in the main that they are optimistic that this will be good for clients. This is because currently, in many cases, they pay up to 20% of their damages on a Damages Based Agreement (DBA).
There is also a general feeling that it will improve access to justice. Practitioners are keen to explore whether a competitive ATE premium could reduce the amount payable by the Pursuer and yet still provide protection against the risk of paying for Outlays and Defender’s costs.
What is causing consternation among some lawyers acting for Pursuers in CN and PI cases is (d) above – abandonment.
- Most will say there are no surprises in paragraph (2) (a) to (c) as this applied before the introduction of QOCS. In England and Wales if an expert for the Claimant in a CN case for example changes their mind, then the claim would be discontinued and the only liability in most cases would be for own Outlays (or Disbursements).
- With (d) inserted in paragraph 2, this could effectively mean that in an abandoned case the Defender could seek their costs. This is a concern when taking into account the Defender nearly always presents a denial at the beginning of a CN case; also that 90% or more settle only once proceedings are issued.
In conclusion
- Whilst the latter is a concern, we must not lose sight of the fact that Defenders in Scotland do not appear to be costs driven; to achieve a discontinuance and a ‘walk away’ is often seen as a good result.
- In addition, the statistics are quite comforting when we consider Sheriff Principal Taylor’s reviewed evidence suggesting that expenses were recovered from unsuccessful Pursuers in fewer than 1% of cases.
- Pursuers will need to be advised of the risks which remain and available solutions including ATE. At Temple we will be happy to provide a competitive solution to the risks which exist heavily in relation to Outlays; but also the remaining risk of having to pay out Defenders expenses where a case is abandoned.
Do get in touch. If you would like more information on our ATE insurance and outlay funding products, please email David Stoker or call me on 01483 514808. We look forward to hearing from you.
You may also want to read/download
- ‘The Temple Guide to Personal Injury and Clinical Negligence ATE insurance and Outlay Funding for Scotland’
- ‘The New Deal – that’s the real deal in ATE insurance for clinical negligence specialist in Scotland from Temple Legal Protection.’
David Stoker, LL.B (Hons)
Senior Underwriter
David Stoker, LL.B (Hons)
David joined Temple in 2015 having previously been an underwriter for another ATE insurance provider for nearly 9 years dealing with all aspects of personal injury work.
David’s experience allows him to undertake a key role in Temple’s ATE insurance personal injury and clinical negligence teams. He also participates in the assessments of delegated schemes that Temple provide with the objective of helping our customers make the most of the products and services Temple has to offer.
David has a LLB honours degree in law and also completed the Legal Practice Course at Guildford College of Law obtaining a commendation. He has worked as a personal injury case handler for 2 firms of solicitors post-graduation before moving into LEI.
Read articles by David Stoker, LL.B (Hons)
