New rules which will mean that an unsuccessful pursuer in personal injury proceedings (including fatal claims) will not generally be found liable in expenses to a successful defender are due to come into effect in Scotland at the end of June 2021.
A similar scheme known as Qualified One-way Costs Shifting (QOCS) has been operating in personal injury cases in England & Wales since 2013 and the forthcoming change in rules means similar, but not identical provisions, will now operate in Scotland too.
The underlying legislative provision in s.8 of Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 will be brought into force on 30 June 2021. The Scottish Civil Justice Council are understood to have approved a new set of court rules at their meeting on 26 April although the rules themselves are not yet publicly available.
The transitional provisions contained in Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (Commencement No. 4 and Transitional Provision) Regulations 2021/125 are complex but in short:
The new rules will apply to all claims which commence on or after 30 June 2021 and to proceedings arising from those claims.
A successful defender will therefore still be entitled to an award of expenses against an unsuccessful pursuer in any action which is commenced (served) before 30 June 2021.
An award of expenses will not ordinarily be made against an unsuccessful pursuer in personal injury proceedings commenced on or after that date.
An unsuccessful pursuer will lose the protection of the restriction on their liability for expenses if they are held to have failed to conduct the resulting court proceedings "in an appropriate manner". A defender will then be able to seek an award of expenses.
Proceedings will be assumed to be conducted appropriately unless either the pursuer or their 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,
- Otherwise conducts the proceedings in a manner that the court considers amounts to an abuse of process.
Relevant fraudulent representations or manifestly unreasonable behaviour may relate to the claim as well as the court proceedings.
The way in which application of the new rules should interact with a Tender lodged by a defender (the Scottish equivalent to a Part 36 offer) has been controversial and is likely to be determined by the precise terms of the new court rules.
We will provide further comment as soon as the rules are published.