On 30 June 2021, part of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (Commencement No 4 and Transitional Provisions) Regulations 2021 entered into force implementing rules relating to qualified one-way costs shifting (QOCS) for personal injury cases. The new rules will be applicable for all cases litigated from the effective date in both the Court of Session and Sheriff Court cases.

The rules have had several setbacks relating to the effective date due to both the current health pandemic and Brexit. With their implementation, however, it is thought that they will have a considerable impact on handling personal injury claims. The hope is that they will potentially improve justice access and allow those who have suffered a personal injury to claim without the worry of sustaining considerable liability costs if their claim fails.

The main aim of the QOCS is to remove an award of expenses made against the person bringing the court action on the proviso that the proceedings are properly conducted. 

If the case is found to have been made under a fraudulent representation, or the person has acted in a manner that is considered to be noticeably immoderate or has abused the process, then the court may remove the QOCS protection.

There are. of course, exceptions to these rules are as follows:

Section 8(4) of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, which lists three exceptions relating to the conduct of the claimant. The criterion of proof concerning these three is on the balance of probabilities.

Act of Sederunt (Rules of the Court of Session 1994, Sheriff Appeal Court Rules and Sheriff Court Rules Amendment) (Qualified One-Way Costs Shifting) 2021, which also lists three exceptions relating to the removal of QOCS protection, in particular, a Minute of Tender, similar to a part 36 offer. This specific exception could potentially undermine the compensation claim should the complainant be unsuccessful in procuring an award for damages superior to the amount presented.

Insurers are advised to work closely with solicitors employed in Scotland to plan for the expected growth in lawsuits and alterations in strategies by the claimants’ solicitor.