Mike Kemp look at the the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill.

On 28 June 2017 I, along with other colleagues, attended the group APIL Scotland meeting to discuss the details of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill. The purpose of the meeting was to allow the APIL Scotland representatives to gauge the membership’s views on the bill before they appear before the relevant Scottish Parliament committee. There are a number of interesting parts to the Bill but the part I’d like to focus on in today’s blog is Qualified One-Way Cost Shifting, or QOCS for short.

The present position with expenses is that, although the court has discretion, generally an unsuccessful party will be found liable to pay the other side’s legal expenses. The new QOCS provision is designed to ensure that an injured person who is ultimately unsuccessful in their case does not need to pay the court expenses of the defender.

There are some exceptions to the rule that an injured person should not have to pay the defender’s expenses if their claim fails. Firstly, in terms of the bill as currently drafted, it only applies to a person who conducts proceedings in an appropriate manner. It also does not apply to a person who behaves in a manner which the court considers falls below that expected of someone engaged in civil proceedings or who conducts proceedings in a manner that the court considers amounts to an abuse of process. Lastly, if a person is found to have made a fraudulent claim, QOCS offers no protection and the court then decides whether they should pay the defender’s expenses.

I agree in principle that a person who behaves in a poor manner in the conduct of the court action should not have the protection of QOCS. It is important that the court process runs smoothly for the benefit of all parties and if either party were to try to use the court procedure to deliberately delay matters or otherwise behave unreasonably then they should not be shielded from having to pay the opponent’s costs. In practice, this is likely to come up only in very rare circumstances.

There can also be no doubt that someone who makes a fraudulent claim should not be entitled to the benefit of QOCS. Such fraudulent claims are not as widespread as some insurers would have you believe but in those rare cases where that happens there is no justification for the fraudster being protected from the cost of the court action. The current wording of section 8(4) of the bill does not adhere to Sheriff Principal Taylor’s view expressed in his 2013 report that in many unsuccessful cases the claimant’s recollection of an accident may not be accepted by the court but that does not mean the claimant is engaged in fraud. Trauma can have considerable impact upon the ability of a claimant to accurately recall events central to an accident and Sheriff Principal Taylor’s view was that those persons should still be afforded protection from paying the defender’s legal expenses.

The clear intent of Sheriff Principal Taylor’s review is that the honest injured person who wishes to make a claim but, for one reason or another, is ultimately unsuccessful in the claim should not face the prospect of having to pay the defenders legal expenses as long as they have conducted the court action in a reasonable manner. This is fair and removes a barrier that prevents many persons injured through no fault of their own from proceeding with court action.

The exact wording of the bill is not yet complete and there may be some changes to that but the general consensus from APIL members was that any changes should be minimal and designed purely to clarify that the wording of the legislation meets the spirit of what was recommended by Sheriff Principal Taylor in his 2013 report on which the bill is largely based. It does seem, though, that QOCS is coming and is to be warmly welcomed.