08 September 2022

While QOCS (Qualified One-Way Costs Shifting) in Scotland is still in the process of ‘bedding in’ and we await some degree of guidance as to where the boundary likely will lie in relation to the removal of the costs protection afforded to pursuers, the decision in Sharon Cossey v The Buccleuch Estates Ltd [2022] CSOH 50 albeit pre-QOCS, makes for interesting reading.

QOCS applies to actions for personal injuries raised after 30 June 2021. The starting position is that the Court must not make an award of expenses against the pursuer in such an action - section 8(2) of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. However, the protection afforded by section 8 applies where the pursuer has conducted proceedings in an ‘appropriate manner’ and the protection can be removed where the pursuer or their representative makes a fraudulent representation or acts fraudulently; behaves in a manner which is manifestly unreasonable; or, conducts proceedings in a manner such as to amount to an abuse of process - section 8(4).

In Cossey, the pursuer fell into an open manhole cover. Liability was admitted. She claimed to have suffered persistent pain in the right hand side of her body, affecting the shoulder, arm, wrist and leg. The pursuer claimed for solatium, loss of earnings, pension loss and necessary services. The sum sued for was £1,000,000. She claimed to have suffered from widespread and persisting pain resulting from exacerbation of her somatoform symptom disorder.

Various descriptions of the incident circumstances were found by the Court to be inconsistent. The pursuer was 5’ 2”. She described both legs falling into the manhole and arresting her fall by putting her arms out to the side and that her feet did not touch the bottom, despite falling to the depth of her chest. The depth of the manhole was measured at just under two feet.

When shown video footage of the manhole, she was unable to offer any explanation for the inconsistency. The depth of the manhole had not changed.

She had a lengthy history of medical complaints which pre-dated the incident. From at least 1994, the pursuer had been complaining of pain and other issues associated with her limbs for which no organic or neurological cause could be identified. This included pain in her right ankle and her right leg ‘giving way’. A full discussion of the somatic symptom disorder can be found at paragraph 66 onwards in the judgment. In summary, the condition is characterised by physical symptoms which cannot be explained organically. Those suffering from the condition may be poor historians, seek to persuade doctors as to their symptoms and may attempt to link symptoms to a recent event.

The defender did not argue that the pursuer fabricated the case, nor was she accused of lying or exaggerating. At paragraph 81 though it is stated:

“….the evidence of this episode demonstrates that the pursuer has come to create for herself an explanation of an event which she is convinced of, to the extent that she will not accept contrary expert medical evidence, but which is entirely incorrect.”

Surveillance footage appeared to show no discomfort on the part of the pursuer. Professor Carson, a Consultant in Neuropsychiatry and Psychological Medicine, instructed for the defender, whoseopinion, that the pursuer had not suffered an exacerbation of her pre-existing somatoform disorder, was ultimately preferred,

The total award made was £5,046 with interest at the rate of 4% per annum thereby failing to beat the early Tender of £15,000. All in, an excellent result for the defender and its insurers.

Conclusions

If the above case had been litigated after QOCs came into force, it could have offered an opportunity to explore whether the Court would have found the overall circumstances such as to allow one of the section 8(4) exceptions to apply.  While attacking a pursuer’s protection under QOCS is permissible under section 8(4), it remains to be seen which of the three options will be relied upon by defence agents. Each case will be very much fact sensitive, and it has been speculated that section 8(4)(b) ‘behaves in a manner which is manifestly unreasonable in connection with the claim or proceedings’ may offer an arguable route for an award of expenses being made in favour of a defender in a case such as Cossey going forward.

The defender, having benefited from the protection of a Tender in the above case and an award of expenses in their favour, the pursuer very likely experienced that sinking feeling.

For more information on the issues raised above please contact:

Alistair Barbour, Associate & Solicitor Advocate: awb@bto.co.uk / 0141 221 8012