Book reviews

Robert Milligan QC

PUBLISHER: LAW BRIEF PUBLISHING
ISBN: 978-1912687794
PRICE: £34

 As Benjamin Franklin said, in this world nothing is certain except death and taxes. The personal injury lawyer might add a third item: an argument about expenses. As Mr Milligan explains in this slender volume, the potential for litigation about expenses looks set to increase.

The rules implementing the provisions of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 came into force on 30 June 2021. With them, the old rule of expenses following success was swept away in personal injuries actions. It has now been replaced by QOCS – qualified one-way costs shifting. Under the new regime, the court must not make an award of expenses against the unsuccessful pursuer in a personal injuries action – provided that the pursuer conducts the proceedings in an appropriate manner. What is an appropriate manner is to be determined by reference to s 8(4) of the 2018 Act. Ultimately, the pursuer may be deprived of QOCS protection if he has behaved in a manner which is manifestly unreasonable.

This is uncharted territory in the Scottish courts. To assist the litigator in assessing where the pitfalls might lie, and how they might be avoided, Milligan examines the case law on QOCS from England & Wales, and also Ireland (which has, he notes, “a long history of fraudulent and exaggerated personal injury claims”). He starts (and ends) by emphasising the caveat that the wording of the English provisions is different. South of the border an order for costs may be made against the claimant if he has been “fundamentally dishonest”. That concept does not feature in the Scottish provisions. However, it seems that the English case law on dishonesty might well inform the thinking of the Scottish courts in coming to a view on whether the Scottish pursuer has been manifestly unreasonable.

There is helpful advice too in relation to tenders. The pursuer’s liability is now restricted to 75% of the damages awarded to the pursuer. However, as Milligan advises, the tender is likely to remain a potent weapon in the defender’s armoury, and one which must be considered by pursuers with the same degree of caution as before.

He also examines another aspect of litigation funding, namely the regulation of speculative actions with new rules about success fee agreements. These are now governed by the 2018 Act and the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (Success Fee) Regulations 2020. As Milligan explains, these go a long way to simplifying and regulating success fees with the introduction of a success fee cap. However, the text highlights the potential for conflict between solicitor and client in some areas. For example, where future losses are awarded in periodical payment orders (PPOs) they cannot be taken into account when calculating the success fee. Solicitors (and clients) would do well to have regard to the advice in the text when considering how to draft agreements and resolve any disputes arising from them.

This concise text does well to bring to life the potentially dry world of expenses litigation. It will be a useful reference for both pursuers and defenders in the early days of the new world of QOCS and beyond.

David McNaughtan QC, Compass Chambers