Qualified one way costs shifting by winter 2020?

It has been almost two years since the Scottish Parliament passed the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. Yet, the necessary secondary legislation required to implement the rules regarding Qualified One Way Costs Shifting (QOCS) remain outstanding.

As a very brief reminder. QOCS means that a losing pursuer/claimant will only be liable for a defenders expenses in limited circumstances.

Whilst the original expectation was that the rules relating to QOCS would be issued in the first few months of 2020, it would appear that this has been delayed until the end of the year.

This delay in implementation has caused the (now former) President of the Law Society of Scotland, John Mulholland, to voice his concerns. In a letter to the Lord President, Mr Mulholland sought clarification on the timescales for the rules being implemented. He said:

“Practitioners have been voicing concerns to the Law Society that one of the principal reasons for the introduction of QOCS, namely improving Access to Justice for those who have suffered personal injury, is taking longer to address than is necessary”.

In response to that letter, the Lord President has now confirmed the rules to implement QOCS will be in force no later than winter 2020.

Proposed timetable

The Lord President confirmed that work to deliver the rules to implement QOCS is a priority. He proposed a timescale for implementation including:

• The Scottish Civil Justice Council (SCJC) to approve the rules by the end of the summer
• Three months for the Scottish Courts and Tribunals Service to achieve ‘operational readiness’

This proposed timetable gives us some clarity as to when we can expect the rules relating to QOCS to be in place. We are aware that QOCS may alter the way in which cases are litigated and impact the handling of those by businesses and insurers. For our previous comments on the impact of QOCS and the proposed rules please see our Legal Update and Webinar.

We will closely monitor the progress of the rules and provide further updates once additional information is available.