QOCS - time for review

Qualified One-Way Costs Shifting (QOCS) was introduced by the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. It is now a fundamental feature of personal injury litigation, restricting the circumstances in which a defender may recover expenses from an unsuccessful pursuer.

Although the Act received Royal Assent on 5 June 2018, the QOCS provisions did not come into force until 30 June 2021. More than five years of practical experience is therefore now available.

The statutory review

The 2018 Act requires the Scottish Government to publish a review of QOCS as soon as practicable after five years from the date of Royal Assent. The Scottish Government’s position in January 2026 was that a meaningful assessment required robust data, and they would therefore focus on five years of actual operation, rather than five years from the date of Royal Assent.

That operational milestone has now passed and there should be a substantial body of evidence available from which to assess how the regime is working in practice.

Has QOCS struck the right balance?

The principal objective of QOCS was to improve access to justice by limiting the circumstances in which an unsuccessful pursuer in a personal injury action could be found liable for a defender’s expenses. That objective and the resulting shift in risk was a deliberate policy choice. However, policy decisions are not beyond challenge: they must be scrutinised and, where the evidence warrants it, amended or reversed.

The question is whether the QOCS regime has produced an appropriate balance between pursuers and defenders. If experience shows that QOCS has created a significant or unintended imbalance, the statutory review should confront that evidence directly rather than assume that the provisions set out in 2018 remain appropriate today.

What should the review examine?

The review should ask whether QOCS has in fact improved access to justice and, if so, for whom. It should also consider whether the statutory exceptions are being interpreted and applied consistently and in the way Parliament intended. Those exceptions are central to the system’s safeguards, so uncertainty or inconsistency matters.

The review should also examine whether QOCS has changed litigation behaviour: settlement rates, the number of claims proceeding to proof, the frequency and handling of fraud allegations, and the duration and cost of proceedings. Its financial impact on pursuers, defenders, insurers and solicitors should be assessed, together with any credible evidence of an effect on insurance premiums. Finally, possible reforms should be considered, including whether provision should be made for incidental awards of expenses in certain circumstances.

Time to act

Ultimately, the task is to test whether the balance struck in 2018 remains the right one now. Where the evidence supports QOCS, that should be recognised. Where it reveals unfairness, inconsistency or unintended consequences, proportionate reform should follow.

Five years of operation provides the opportunity for a careful, evidence-led assessment and review would be welcomed by those operating within the personal injury landscape now.

If you have any questions, please contact Carly or Anna, or our Insurance Team.