18 July 2024

In the ever-changing landscape of Qualified One-Way Cost Shifting (“QOCS”), Defenders have found themselves fighting an uphill battle to recover their expenses (costs) if an action is successfully defended. QOCS is designed to avoid personal injury Pursuers who are simply unsuccessful at Proof with the defender’s version of events being preferred, being found liable for the Defenders’ expenses.

In a rare success for Defenders, Lewis Richardson, Senior Associate and Solicitor Advocate, and Sian Keddie, Solicitor, recently represented the defenders in Nicola Bruff v Royal & Sun Alliance Insurance Ltd.

While the accident which resulted in the court action was straightforward– a collision between two vehicles at a junction – it was the behaviour of the Pursuer and the evidence presented by her that sets this case apart.  In particular, the Pursuer sought to rely on the evidence of someone she claimed was an independent witness.  The witness claimed to that he did not know the pursuer.  However, investigations on the part of BTO uncovered social media evidence that not only was the witness known to the Pursuer through his partner, who was a colleague of the Pursuer, but he had also installed a patio at her property just weeks before the accident. Whilst it was initially argued that this was incorrect, on production of further evidence the Pursuer’s solicitors withdrew from acting.

The Pursuer then admitted to the court at Proof that the witness had lied to her former agents and the Defenders about witnessing the accident.  On cross examination on this point, the pursuer exercised her right against self-incrimination and declined to answer when questioned on how the witness had come to provide this false statement.

The Pursuer continued with the case, representing herself and leading evidence from her mother and partner, both of whom claimed that the other driver had admitted liability for the accident at the scene.  This was denied by the driver.   One of the pursuer’s witnesses claimed that he had said he was running late to a trip to the seaside with his wife and sister.  However the driver pointed out that he cannot have said that, as his wife had passed away 10 years prior!

The defence was two-fold; that the accident was not the fault of the defender’s insured driver and, in any event, the attempt to rely on an admittedly false statement was an abuse of process and the case should be dismissed.  

In the Sheriff’s judgment he was critical of the credibility of the pursuer and her witnesses, ultimately finding in favour of the defender on the merits. On that basis the Sheriff did not need to address the argument that the bringing of the case amounted to an abuse of process.

The Defenders subsequently moved for disapplication of QOCS, and for the pursuer to be found liable in the expenses of the action. Although the Sheriff was invited to disapply QOCS on all three statutory grounds, he held that he was unable to make a finding that there had been a fraudulent representation as there had not been a finding in fact of that at Proof. However, the Sheriff was persuaded that the Pursuer’s behaviour, in producing a witness who had lied, was both manifestly unreasonable 8(4)(b) and an abuse of process under 8(4)(c).  QOCS was disapplied and the expenses of process were awarded in favour of the Defenders.  The Sheriff, while noting that the accident had been genuine and that the Pursuer had likely suffered some minor injury, made reference to the untruthful witness, and his presence and the central focus of his evidence for a significant period of the litigation, in coming to this conclusion.

The decision is welcome in reiterating that the QOCS protections exist only for pursuers who have not set out to mislead the Court or other parties to the litigation.  Defenders should also be aware of the importance, if appropriate, of establishing the existence of fraud or abuse of process at Proof even if the fraud does not directly relate to the accident circumstances. 

The decision can be found here:

Proof: 2024scedin30-nicola-bruff-against-royal--sun-alliance-insurance-limited.pdf (scotcourts.gov.uk)

Expenses: 2024scedin31-nicola-bruff-against-royal--sun-alliance-insurance-limited.pdf (scotcourts.gov.uk)

Sian Keddie, Solicitor: ske@bto.co.uk / 0131 222 2939

Lewis Richardson, Senior Associate & Solicitor Advocate: lri@bto.co.uk / 0131 222 2939