Chloe Neil

The law in Scotland was changed following the introduction of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, with the objective of bettering access to justice. The aim was to redress the balance between pursuer and defender as the risk of having to pay a defender’s legal expenses following an unsuccessful claim naturally acted as a deterrent to litigation. Traditionally in civil litigation, expenses follow success, with a successful party being awarded their legal expenses. However, Section 8 of the 2018 Act established that the court will not award expenses against a pursuer in a personal injury action provided that court proceedings are conducted in an “appropriate manner”.

This does not offer absolute protection to a pursuer however, as a defender can still seek expenses from an unsuccessful pursuer but only in certain limited circumstances. Section 8(4) sets out the 3 main exceptions to this rule where an application can be made for QOCS to be disapplied:

It should be noted that further exceptions have been introduced by the Sheriff Appeal Court Rules of 2021, Act of Sederunt (Sheriff Appeal Court Rules) 2021. A pursuer can also be liable to pay defender’s expenses in the circumstances where:

• a pursuer fails to achieve an award of damages more than an amount offered by way of a tender lodged in process;
• there is an “unreasonable delay” in accepting a tender lodged in process;
• the pursuer unilaterally abandons the action against a defender.

With these exceptions in mind, it is important to consider how the courts have applied this in practice.

Lennox v Iceland Foods [2022] SC EDIN 42

The case of Lennox was the first reported Scottish QOCS decision and was issued in December 2022. The pursuer in this case had tripped over shopping baskets in the defender’s premises and suffered injury as a result. Her case was ultimately unsuccessful, and the defender sought the expenses of the action, relying on the manifestly unreasonable and abuse of process exceptions. The defender’s motion was refused, with it being made clear by the Court that it felt that manifestly unreasonable “is clearly something that is more than just unreasonable.” Sheriff Fife noted that the test for manifestly unreasonable was a high one. He noted that this was not a case that failed because there were no prospects of success. It failed simply because the pursuer’s argument had not been accepted by the court. That in itself did not meet the threshold of manifestly unreasonable behaviour. Further, he concluded that although the pursuer may have been an unreliable witness, it was not that she was not credible and had evidence been interpreted in a different way, the outcome may have been different. Therefore, there had been no abuse of process either.

Gilchrist v Chief Constable Police Of Scotland [2023] SC EDIN 30

This case further highlights the high tests which must be satisfied for QOCS to be disapplied. The pursuer was employed as a clinical support worker who suffered injury following an assault by a patient who was in police care at the time. She suffered an injury to her hand and subsequently was diagnosed with anxiety, depression and PTSD. The police officer’s account of the events in question were preferred and it was found that the injuries were not sustained as a result of the defender’s negligence. The defender sought expenses, arguing that QOCS should be disapplied, on the basis of fraudulent misrepresentation or manifestly unreasonable behaviour.

It was made clear that when deciding whether there had been fraudulent misrepresentation, the court had to “consider the whole facts and circumstances of the litigation.” Sheriff Campbell went on to note that as had been established in Lennox, “the threshold for fraudulent misrepresentation is a high one.” For fraudulent misrepresentation to be found, there had to be some element of deliberately trying to mislead the court by the pursuer or their agent; in other words, it is therefore not enough that the pursuer’s evidence is not preferred – there must also be a deliberate intention to mislead. Ultimately the court found that the circumstances did not meet the threshold for fraudulent misrepresentation, nor did they meet the threshold for unreasonable behaviour.

Nelson v John Lewis Plc [2023] SC EDIN 44

This is on the most recent reported decision on the application of QOCS. In this case, the pursuer had allegedly been struck on the head by a ball in the course of his employment and soon afterwards he suffered from hearing loss in the right ear. His position was that this occurred as a result of being hit in the head and that the defenders was to blame for the accident. The pursuer’s case ultimately failed as though he was successful in establishing that the defenders were at fault, it could not be established that his hearing loss was due to the incident in question because of an entry within his medical records noting the onset of deafness a day prior to the incident. The defenders argued that QOCS should be disapplied on the basis that the pursuer had been fraudulently misrepresenting the cause of his medical condition and was acting in a manifestly unreasonable manner.

Sheriff Primrose agreed with the approach taken in Gilchrist, stating that for the court to find fraudulent misrepresentation there had to be either “a false representation made knowingly or without belief in its truth” or “a statement made recklessly, without regard to whether it was true or false”. It was noted that the pursuer had stuck to his version of events which remained unchanged throughout. He was not deliberately trying to mislead the court and it was not manifestly unreasonable even though, just as in Gilchrist and Lennox, the defenders’ evidence was preferred to the pursuer’s.

It is clear from these decisions that each case is assessed depending on its specific circumstances. There have of course been cases where defenders have been successful in persuading the Court to disapply QOCS, such as Carty v Churchill Insurance [2023] SC EDIN 31. In that case, the pursuer was found to have behaved in a manifestly unreasonable manner after he accepted a Tender just prior to Proof of the same value as a pre-litigation offer made nine months earlier. In Musialowska v Zurich Insurance [2023] SC EDIN 36, a case concerning a road traffic accident, it was found that the pursuer and one of their witnesses were unreliable, leading to the Court taking the view that they had fraudulently misrepresented the circumstances of the accident.

As a developing area where case law continues to grow, it is clear that QOCS is not a foolproof protection for pursuers. However, what remains clear is that each case will be assessed depending on its specific circumstances and the test for QOCS to be disapplied remains high. It can therefore be concluded that as matters currently stand, QOCS appears to be acting as intended for genuine and honest pursuers.