Qualified One Way Costs Shifting update
New rules to improve access to justice for those who have suffered personal injury will come into effect at the end of June.
The rules in relation to Qualified One Way Costs Shifting (QOCS) were laid before Parliament on Tuesday, 1 June 2021, having been under active consideration by the relevant Scottish Civil Justice Council (SCJC) committees for a number of months.
The rules, which give effect to a section of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, are contained in 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. They come into force on 30 June 2021.
Iain Nicol, Convener of the Society’s Civil Justice Committee, said: "The introduction of the new rules is welcomed and will improve access to justice for those who have suffered personal injury by significantly reducing the risk of adverse costs awards. They, along with the Success Fee Agreement regulations introduced last year, help to remove significant barriers to those seeking to vindicate their rights in the civil courts.
"The Civil Justice Committee made various representations to the SCJC during the consultation period of the draft rules and in recent months when pressing for an implementation date. The Committee was pleased to note that some of their suggestions are reflected in the rules, including the need to take a consistent approach in relation to the application of the 75% cap to failure to beat tenders and late acceptance of tenders."
The operation of QOCS is subject to a review which must be completed by 5 June 2023.
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The following new rules are created: RCS 41B; SAC 19A; OCR 31A and SCR 23A.
There is no new Simple Procedure Rule as personal injury claims cannot be conducted under Simple Procedure.
QOCS applies:
a. To actions raised on or after 30 June 2021 regardless of the date of the accident and
b. where a person makes a claim for personal injury or death (including medical negligence cases) and conducts the proceedings in an appropriate manner.
The proceedings are conducted in an appropriate manner unless the Pursuer:
(a) makes a fraudulent representation or otherwise acts fraudulently in connection with the claim or proceedings,
(b) behaves in a manner which is manifestly unreasonable in connection with the claim or proceedings, or
(c) otherwise, conducts the proceedings in a manner that the court considers amounts to an abuse of process.
Where QOCS applies the court must not make an award of expenses against the Pursuer in respect of the claim or any appeal. QQCS does not apply to counterclaims.
The court may still make an award of expenses in relation to an aspect of the court action which does not relate to personal injury e.g. credit hire claims.
The 2021 Regulations create 3 additional exceptions where QOCS protection can be lost:
(a) failure by the pursuer to obtain an award of damages equal to, or greater than, the sum offered by way of a tender lodged in process;
(b) unreasonable delay on the part of the pursuer in accepting a sum offered by way of a tender lodged in process;
(c) abandonment of the action or the appeal by the pursuer in terms of rules 29.1(1), 40.15(1) or 41.15(1), or at common law.
If QOCS is disapplied due to the Pursuer failing to beat a tender or failing to timeously accept a tender the opponent’s contra account cannot exceed 75% of the damages awarded and the opponent is not entitled to offset their contra account against the judicial expenses payable to the Pursuer.
A party seeking to have the court disapply QOCS must make the application by written motion at any time prior to the final interlocutor disposing of expenses. The court can regulate the procedure for disposing of the motion as it sees fit including the fixing of an evidential hearing on the merits of the motion.
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