Sarah Ennis

The dispute, which resulted in the first reported decision of its kind in Scotland, related to the subject of Qualified One-Way Costs Shifting (QOCS). Traditionally, an injured person who was unsuccessful at proof required to meet their opponent’s judicial expenses. However, as of 30 June 2021, such an individual has the protection of QOCS. Under QOCS, an unsuccessful pursuer in a personal injury action is not required to meet their opponent’s expenses, except in specific circumstances. Some of those circumstances are laid out in the 2018 Act and arise where the pursuer (or their agent) has conducted the litigation in a way which is fraudulent (section 8(4)(a)), manifestly unreasonable (section 8(4)(b)), or which amounts to an abuse of process (section 8(4)(c)).

These rules constitute a significant development in personal injury litigation in Scotland. Although the provisions were introduced 18 months ago, they attracted no reported judicial consideration until December 2022, when the All-Scotland Personal Injury Court was presented with an opposed motion in the case of Helen Lennox v Iceland Foods Ltd (now reported at [2022] SC EDIN 42).

The pursuer, who was 80 years old at the time of the accident, was shopping in the defender’s supermarket. She tripped over a pile of shopping baskets and suffered injury. An action for damages followed.

The pursuer’s pled case was that the defender did not have a reasonable system of inspection in place, nor did they follow their own packing and safety procedures. Her position was that those failures led to her injuries. Liability was denied and the matter proceeded to proof.

Both the pursuer and defender presented evidence in support of their respective positions. As is a risk in any evidential hearing, the sheriff ultimately preferred the evidence of the defender’s witnesses. The pursuer was therefore unsuccessful at proof, but had the benefit of QOCS protection.

However, the defender then enrolled a motion asking the court to apply two of the QOCS exemptions contained within section 8(4) of the Act, namely that the pursuer (or her agent) had behaved in a manner which was manifestly unreasonable, and which amounted to an abuse of process. The pursuer was clearly required to address these allegations and an opposed motion hearing followed.

Because this was the first argument of its kind to come before the Scottish courts, debate was had in relation to the definition of ‘manifestly’ unreasonable, and whether this should be interpreted as ‘unmistakably’, as the defender submitted, or in line with the Wednesbury test (as per Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223), as the pursuer argued. The sheriff’s view was this was a high test and ‘manifestly unreasonable’ should be interpreted as ‘obviously unreasonable’.

In relation to ‘abuse of process’, the defender’s position was that the pursuer had come to court without ‘positive evidence’ to prove her case, had made several baseless averments, and that her case had no prospects of success. In their submission, bringing a case like this to court amounted to an abuse of process.

The pursuer’s counsel argued that the test is a high one. It is not simply ‘is the pursuer likely to lose?’

In the sheriff’s opinion, it was not the case that the pursuer had not led ‘positive evidence’. The court had heard from the pursuer and her daughter and no more evidence was required in order for her to succeed. CCTV footage produced by the pursuer was ‘more than sufficient to allow the pursuer to make the submissions she wished to and did make’. Different conclusions could have been drawn from the evidence before the court at proof. This was not a case where the pursuer had no chance, or substantially no chance of success. There was no abuse of process.

The sheriff’s view was ‘the defender’s motion in respect of both sections 8(4)(b) and (c) was ill conceived…The defender has misunderstood i) how high the test is to establish either of the exceptions under section 8(4) and ii) the essence of what the pursuer sought to prove and required to prove in order to succeed with her claim’.

The sheriff’s impression was the gravity of an allegation of abuse of process was not understood by the defender. The sheriff observed this was a very serious allegation to make, representing an attack on the solicitor’s ‘professional conduct and actions’.

The defender’s motion was refused.

We are now seeing further motions relating to the application of the section 8 (4) provisions. Arguments alleging ‘manifestly unreasonable’ conduct and ‘abuse of process’ were recently advanced in another case where the court had determined the pursuer had not established her case at proof. The defender’s agents ultimately confirmed they would not be insisting on their motion in relation to either element of section 8(4), but the pursuer still required to prepare to meet these grave allegations at an opposed motion hearing.
Abuse of process is an assertion striking at the very fundamentals of the behaviour expected of a person regulated by the Law Society of Scotland. Failure to adhere to the professional standards set out by the Law Society, particularly in relation to conduct, may carry significant implications. On that basis, very careful consideration should be given to making an allegation of abuse of process. Such an assertion must be treated most seriously.

Any provision, no matter the subject matter, is interpreted by the court in line with the individual facts and circumstances of a case. Although Lennox was the first reported decision in this area, it is clear that the provisions of section 8(4) of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 were designed to embody a high test. Serious and careful consideration should be given to their use. Lennox highlights that an unsuccessful outcome for a pursuer at proof does not equate to an application of the QOCS exemptions provided for in section 8(4).

We are also aware of a very recent decision, Beverly Gilchrist v Iain Livingston, Chief Constable of Police Scotland, which involved an unsuccessful pursuer represented by another firm. In this case the defender attempted to persuade the court that QOCS should be disapplied on the first two grounds provided for in rule 8(4), i.e. that the pursuer or her agents made a fraudulent representation or behaved in a manner which was manifestly unreasonable in connection with the claim or proceedings. Lennox was referred to in the sheriff’s Note. Again, the sheriff was not persuaded that either element applied. He acknowledged the ‘high test’ attached to an allegation of fraudulent representation and that to succeed the defender must persuade the court that a pursuer or their agent had acted in such a way so to intentionally mislead the court.

The emerging case law is such that whilst individual facts and circumstances are key, the QOCS exemptions provided for in rule 8(4) attract high tests. We continue to watch the development of the law in this area with interest.

Sarah Ennis is an associate at Digby Brown