QOCS and ‘mixed’ claims: a lesser-known and further exemption to the default position in Scottish personal injury claims

BTO recently successfully obtained an award of expenses at a procedural hearing in the All-Scotland Personal Injury Court against a Pursuer in a ‘mixed claim’ for personal injuries, repair costs and credit hire, by reliance on a lesser-known exemption to QOCS protections pursuant to Section 8(3) of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. Kym Haley, Solicitor, appeared for the successful defender.

QOCS Protections and the Default Position on Expenses in Personal Injury Claims in Scotland

Insurers and those acting for them will doubtless be acutely aware of the operation of QOCS (Qualified One-Way Costs Shifting) in protecting Pursuers against having costs awards made against them in connection with claims for personal injury.

The various scenarios in which QOCS protection may be disapplied as detailed under Section 8(4) of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (“the Act”) have been the subject of a number of judicial decisions and indeed have received extensive coverage within the legal community since the relevant provisions came into force.

It is well known that the bar for disapplication of QOCS is notoriously high in terms of persuading a court that a Pursuer or their solicitors have failed to conduct the proceedings in an appropriate manner. There is however a lesser known further ‘exemption’ contained with section 8(3) of the Act, where non-personal injury heads of claim are also included.

Section 8(3)

Section 8(3) reads as follows:

‘(3) Subsection (2) does not prevent the court from making an award in respect of expenses which relate to any other type of claim in the proceedings.’

Having mind to that provision, claims which have been brought on a ‘mixed basis’ (for example where credit hire or repair cost heads are included within the same proceedings for personal injury), in so far as non-personal injury heads of claim are concerned and in certain circumstances, there may be an argument for an award of expenses in favour of the Defender on the basis that they are not subject to the same default blanket QOCS protection as those which are brought purely in relation to personal injury.

There do not appear to have been any reported decisions in relation to the section 8(3) exemption. BTO have however had recent success in testing the point and obtaining an award of expenses against a Pursuer at a hearing before the All-Scotland National Personal Injury Court in respect of discrete procedural expenses which could only be sensibly ascribed to the credit hire head of claim within the proceedings.

It appears from the Sheriff’s decision at the hearing (though unreported) that the courts may be sympathetic to such arguments, at the very least in circumstances where the expenses in question can be clearly attributed to a non-personal injury head of claim within proceedings where both personal injury and non-personal injury heads feature.

Key Insights  

Those acting for Defenders in connection with ‘mixed’ personal injury claims should bear in mind the terms of Section 8(3) and the availability of that provision in seeking to persuade a court that the protections afforded by QOCS ought not to preclude the court from making an award of expenses against a Pursuer, where a section 8(3) argument appears reasonable.

It will of course be of interest to see how the courts will interpret the provision going forward, particularly in so far as the expenses of process are concerned upon resolution of such mixed proceedings.

Should you have any questions in connection with this article then please do not hesitate to contact Kym Haley at kha@bto.co.uk.