20 July 2023

The latest case to test the murky waters of the application of Qualified One-Way Costs Shifting (hereinafter referred to as QOCs), accentuates the uphill battle that defenders face to find an exception to the rules set out in Section 8 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018.

Sheriff Fife’s judgment in Elizabeth Love v National Health Service Fife Health Board [2023] 23 Edin 18, follows the trajectory of the reported case of Lennox v Iceland Foods Ltd [2022] SC Edin 42 by affording the pursuer protection against the defender’s expenses despite apparent deficiencies in the pursuer’s case. For an overview of previous judgments considering the application of section 8 (4), please see my article linked here The Winner Takes it All (Well, Not Always) (bto.co.uk).

The 2018 Act was implemented by the Act of Sederunt (Rules of Court of Session 1994, Sheriff Appeal Court Rules and Sheriff Court Rules Amendment) (Qualified One-Way Costs Shifting) 2021. The rules apply to personal injury actions and generally release pursuers from liability to pay defenders’ legal expenses in connection with an unsuccessful claim or appeal. The protection against expenses is subject to the exceptions laid down in section 8(4) of the 2018 Act. If an exception applies, QOCs will not apply and the pursuer will need to reimburse the defender’s legal expenses. The exceptions apply where any pursuer or their legal representative: 

1. makes a fraudulent representation or otherwise acts fraudulently in connection with the claim or proceedings,

2. behaves in a manner which is manifestly unreasonable in connection with the claim or proceedings,

             or

3. otherwise, conducts the proceedings in a manner that the court considers amounts to an abuse of process.

Defender Unlucky in ‘Love’

In the present case, the pursuer raised a claim for clinical negligence against the defender in relation to the care of her mother who died on 28 October 2018. The pursuer’s solicitor identified 9 October 2021 as the date in which the action would timebar. Various extensions to the triennium were agreed. In the interim, the pursuer’s solicitor withdrew from acting. The pursuer personally agreed with the defender’s solicitors that the action was to be raised by 16 November 2022, otherwise it would be considered to have timebarred.

The pursuer instructed GS Watson Law around three days’ before the action was due to timebar. An initial writ was sent to Edinburgh Sheriff Court on 16 November 2022, further amended versions of the writ followed on 23 and 24 November 2022. Service of the initial writ was effected on 12 December 2022.

On 27 April 2023, at the defender’s request, the court granted summary decree finding that the pursuer had no title to sue as she was not an executrix dative; the claim had timebarred, and there was no other compelling reason why summary decree should not be granted.

A hearing on expenses took place on 26 May 2023. The defender contended that expenses should be awarded in their favour due to the pursuer’s/pursuer’s former solicitor’s manifestly unreasonable behaviour in connection with the claim, and/or conducting the proceedings in a way that amounts to an abuse of process.

The defender highlighted that the pursuer knew she had no supportive causation evidence, her legal aid application was refused as she had no valid claim, and the pursuer’s solicitor ought to have known she had no title to sue as the defender had raised this in their written defences and in their motion but, notwithstanding, the pursuer continued with her action.

Sheriff Fife noted that the proceedings were raised in December 2022 and summary decree was granted on 27 April 2023. The only formal procedure involved the opposed motion hearings and the hearing on expenses. Sheriff Fife concluded that, “while it may have been unreasonable to raise the proceedings. In the exercise of discretion, I am not prepared to conclude it was manifestly or obviously unreasonable to do so”. Some consideration was given to the fact that the pursuer’s  solicitor had been instructed late in the day and as a matter of urgency. He concluded that the pursuer’s solicitor and the pursuer had not acted in a way that was manifestly unreasonable and found that there had been no abuse of process. Therefore, the pursuer was not ordered to pay the defender’s legal expenses.

Only Time will Tell

Sheriff Fife appeared to have regard to summary decree being granted at a very early stage in proceedings which he noted was unusual. He determined that the pursuer’s solicitor did not have an opportunity to continue the action when there was no chance of success, on the basis that summary decree had already been declared, and therefore his conduct did not amount to an abuse of process.

However, the judgment sheds some light on when Section 8(4) may be disapplied. Sheriff Fife stated that if there had been further procedure and/or if the pursuer or her solicitors had persisted with the action, when it had substantially no chance of success, then that might have constituted an exception to the rule. However, as Sheriff Fife mentioned, ultimately each case will turn on its facts and we await further rulings to ascertain when an exception to the rules under QOCs will apply.

Phoebe Crane, Solicitor: pcr@bto.co.uk / 0131 222 2939