Eoin Quinn

The first is that in terms of the current system in Scotland, the defenders were awarded their expenses. With the imminent introduction of QOCS to Scottish personal injury litigation it must be queried whether there will be an increasing reluctance by defenders to take such cases to proof.

After the introduction of QOCS, defenders will only be able to recover their expenses if they can show that the claim was fraudulent, that the pursuer has behaved in a manifestly unreasonable manner, or that the conduct of the proceedings amounted to an abuse of process. It is unlikely that a case such as ours, which simply failed on its merits, would fall within either category and defenders in such cases will have to meet their own costs in the future.

The second is that the defenders were faced with a “pursuer’s offer” at an early stage in proceedings. The consequences of declining such an offer, if the defenders had ultimately been unsuccessful, would have been significant. An additional award would have been sought by the pursuer equating to an additional 50 per cent of their solicitor’s costs from the date of such an offer.

There is no equivalent deterrent available against pursuers who persist with proceedings other than to lodge a tender for a lower figure than claimed. As this must be accompanied with an offer of judicial expenses to be competent, defenders who feel in a strong position may not wish to do so. There is no entitlement to argue that QOCS should be dispensed with when, say, a defender, as was the case here, endeavoured to persuade the pursuer’s agents prior to the proof, that the proceedings should be dropped, with the defenders bearing their own expenses. Will the courts regard such steps as meeting the “manifestly unreasonable manner” exclusion?

The reality is that many pursuers are funded or at least indemnified, with most of the larger pursuer firms having facilities to meet awards of expenses made against their clients. Not all defenders are insured, with many corporates, local authorities and third sector organisations having large excesses or deductibles and requiring to fund many low to medium value claims themselves.

Perhaps there should be such a tool to redress the potential imbalance, particularly when QOCS is shortly to be introduced?

Eoin Quinn is a solicitor at DAC Beachcroft Scotland