Fri 25 Jun 2021

QOCS in Scotland: what do public sector legal teams need to know?

At the end of June, Scotland is due to see a change to litigation costs with the introduction of Qualified One-way Costs Shifting (QOCS) that brings it in line with England.

QOCS will stop courts from awarding expenses against unsuccessful claimants in personal injury cases, unless certain limited exceptions apply.  Personal injury cases include cases when a person is bringing a claim for damages for personal injuries, or death.   

From 1st July onwards, QOCS will act to bring greater equality, and level the playing field between claimants and defendants with differing means.

QOCS coming into force next month will have a significant impact on the public sector. By virtue of them being such a large employer, as well as the fact that the public sector owns a significant amount of land, they are defenders in a large number of employers' liability and public liability claims.

This change has many legal professionals in the public sector speculating that there may be a rise in personal injury cases, since there will be less financial risk to the claimant. However, despite this at first seeming somewhat appealing to claimants, there are a few factors – from coronavirus to the premise of “no win no fee” agreements – that may make this less likely than some think.

It is without doubt an attractive prospect not to have to pay any fee if you lose your case; the element of financial risk will previously have deterred many from entering into litigation. However, in the vast majority of personal injury cases the claimant is successful, meaning that there is little financial risk to begin with. The prospect of financial loss, therefore, is unlikely to be a deterrent in most of these instances. 

Our own analysis of the data available suggests cost orders against claimants are obtained in fewer than 5% of cases because, generally speaking, if somebody raises an action, they are much more likely to be successful than not.

There is, of course, the argument that it is only those with fail-safe cases that are willing to raise an action. For anyone with a case that could be picked apart in court, it may simply not be worth taking the risk.

Among those who are not comfortable with taking risks, or who are not fully confident in their case’s prospects, the option exists to appoint a solicitor on a “no win no fee” basis. Like QOCS, “no win no fee” cases present low risk to the claimant. But the risk transfers to the solicitor being instructed, so they will have to take a view as to how likely they are to win, and what costs they are likely to recover. If they lose, they also lose payment.

A great number of cases will be turned down by claimant legal teams in situations where they don’t think they have a good enough chance of winning. So on balance, it is possible that we will experience only a small rise in personal injury claims among cases with more uncertain outcomes.  It’s unlikely to be significant, in my view.

It is also important to note that the volume of personal injury cases are currently below average. The majority of these cases tend to arise from workplace injuries or road traffic accidents. With coronavirus restrictions having been place for over a year, most people haven’t been in their offices, and we’ve had reduced traffic on the roads, making injuries in these locations much less frequent. So, this in itself makes it less likely that we'll see an increase in claims.

What’s more, a lot of claimants won’t know about the introduction of QOCS. For the large part of the general public, QOCS is an obscure court rule, and it will simply not factor into any decision-making.

That said, while the public is unfamiliar with QOCS, claimants' agents are not. We can again, perhaps, expect a mini-spike in cases being pursued. With the knowledge that QOCS is just about to be implemented, some agents may have delayed raising cases until the rules take effect to reduce the costs risk to their clients.

It may be a relief to learn that we are not necessarily likely to see the boom in the type of cases we see today that many are predicting. However, time will tell as to whether a new day of court actions is dawning – a day where we’ll receive a new genre of personal injury claims: those that are less likely to succeed. While the type of personal injury claims that public sector legal teams are familiar with should remain largely unchanged, we should be aware that, with the introduction of QOCS, we could see an increase in cases with more unpredictable outcomes.

First published in Local Government Lawyer

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