On June 30th, new rules will be implemented to change a Defender’s ability to recover expenses from their Pursuer in a personal injury case in Scotland. These rules permit what is known as a Qualified One-Way Cost Shift (QOCS).
QUOCS prevent courts from awarding expenses against the Pursuers in a Scottish personal injury case. Should a Pursuer’s case be unsuccessful, no longer will they be responsible for the legal fees of the Defender. We explain the concerns and benefits below.
QUOCS will apply in personal injury cases which include physical or mental impairments or in claims for damage raised in courts in Scotland. For all cases on or after June 30th, 2021, these changes will be implemented.
The introduction of QUOCs will ideally encourage more people to pursue a claim, now that they are no longer responsible for two sets of legal fees in the event that they are unsuccessful.
The proposed new rules in relation to QOCS have come with it the concern that Pursuer’s agents will be given free reign and raise anything in Court leaving the Defenders with no recompense when it all goes wrong. Nothing could be further from the truth. Whilst it can be said that the rule changes do, to some extent, make justice a little easier and more accessible for Pursuer it will not change the way in which Pursuer’s Solicitors analyse a case. Any prudent Solicitor will not raise a Court action where they do not feel like they will be successful as this is against their ethical duty both towards the Court and to the client. Litigation will still come with it a risk/benefits analysis as to whether or not it is a case one which can be won on the balance of probabilities and this will or at least, should not change.
That is not to say that it does not have its benefits as it will allow the pursuer who is self-funding to have “his or her day in Court” without the threat of a large bill should it not go their way. It should also allow cases to brought before our Courts which would normally be deemed “too risky” and allow the law to develop rather than be determined by the cases which are deemed to be dead certs.
In addition, another of the positives of the change is that it may actually assist in moving cases along more quickly than they have in the past. The legislation states that where a reasonable offer is made and there is a delay in acceptance by the pursuer there will be a fee penalty against the pursuer in relation to the delay. Hopefully, this will focus the minds on both sides of the case.
The protection for the defenders is that where the pursuer is deemed to have acted fraudulently/manifestly unreasonably or there has been an abuse of process there will be an award of expenses made against the pursuer. Whilst there has to be some protection built in for the defenders there does not seem to be the same penalty for the defender who acts in the same way which seems unfair.
The question has to be asked will the defender’ be more focused on finding the fraud or an abuse of process rather than actually looking at the case in hand? We are already seeing more arguments being made by defenders in pre-litigation correspondence alleging that the pursuer could not, in their opinion, possibly be injured. Care will have to be taken by the Courts in deciding whether or not a pursuer is being fraudulent as this is a strong and damaging allegation. Through fraudulent pursuers are few and far between.