25 November 2019

As 2019 draws to a close, it is perhaps a good time to reflect on what was perhaps the final year before Qualified One Way Cost Shifting (QOCS) is implemented in Scotland and to consider the implications of the legislative civil litigation reforms occurring both north and south of the border in the context of fraudulent claims.

The introduction of QOCS in Scotland will not be accompanied by similar whiplash reforms to those which have been introduced in England. The Civil Liability Act 2019 dramatically reduced the amount of compensation for whiplash injuries in England and, as a result, insurers in England are turning their fraud focus to a potential increase in non-personal injury fraud (e.g. fabricated repair costs, credit hire etc).

A recent example of an English case where QOCS has been dis-applied is Haider v DSM Demolition Limited [2019] EWHC 2712 (QB) where a claimant who had ‘deliberately failed to disclose highly material evidence’ in relation to his financial circumstances where he was relying upon impecuniosity as a basis to recover full credit hire costs exceeding £30k was found to have been fundamentally dishonest.

The expected introduction of QOCS in Scotland will remove much of the financial risk associated with proceeding with a fraudulent or exaggerated claim and this, together with the potential for higher awards of damages, could well make Scotland a more attractive jurisdiction for those involved in pursuing fraudulent claims. The need for Scottish insurers and solicitors to have in place effective fraud strategies is therefore obvious.

At BTO, we place identifying, and challenging fraudulent or exaggerated claims at the centre of our claims handling strategies. Recent successes have included successfully repudiating a number of claims from a suspected organised fraud ring where our client’s insured vehicle was hired in Scotland, by a driver resident in England, for a single day, and was involved in an accident late at night in suspicious circumstances. The third party vehicle had unusually high occupancy, with the driver and six passengers all intimating claims. The hirer returned to England immediately after the accident, never to be seen again. Our investigations were indicative of organised fraud. By adopting a robust stance and an effective fraud strategy, the claimants were persuaded to drop their claims. We are currently dealing with a number of claims with similar concerns. We also recently successfully defended a claim worth over £118k where a pursuer had wholly fabricated his injuries, and we obtained a significant costs award against him. For further details see Lewis Richardson’s recent article, ‘He’s not just a gamer….he’s a very naughty boy’.

The Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2019, the legislation which will bring QOCS into effect, provides a number of exceptions where QOCS will be dis-applied. These are where the claimant or his or her legal representative:

(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

The circumstances the Scottish courts will be prepared to apply the exceptions to QOCS courts remains to be seen. The legislation provides no guidance on this. Whilst English case law will no doubt be considered by the courts here, the wording of the legislation is different and we can expect a distinct body of jurisprudence to be developed by the Scottish courts on matters such as abuse of process, fraudulent misrepresentation, unreasonable conduct and non-party costs awards. Over the next few years, insurers will want to be at the forefront of testing the relevant arguments on appropriate cases.

Contact: Angus Gillies, Associate, agi@bto.co.uk T: 0141 221 8012