QOCS (Qualified One Way Costs Shifting) has been a reality of Scottish injury litigation for around 18 months. For the first time we have had a test case on when QOCs might be disapplied.

The underlying principle of QOCS is that an unsuccessful pursuer will only be required to pay the defender’s legal expenses in very limited circumstances. This was a significant change from the previous system in Scotland where expenses generally followed success.

The Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 is the legislation which implements QOCS in Scotland. Under section 8(4), in order for a defender to recover their costs, they must show that the pursuer:

• made a fraudulent representation or otherwise acted fraudulently in connection with the claim or proceedings;
• behaved in a manner which was manifestly unreasonable; or
• conducted the proceedings in a manner that amounts to an abuse of process.

The exceptions are therefore very limited and despite much debate as to how high the court would set the bar for defenders to recover their costs, we have had to wait around 18 months for the decision on QOCS with the judgment of the All-Scotland Sheriff Personal Injury Court in Helen Lennox v Iceland Foods Ltd [2022] SC EDIN 42.

The claim arose as the pursuer tripped over shopping baskets in a supermarket. It was argued that Iceland failed in its duty to take reasonable care, for example by failing to utilise basket holders and allowing customers to place their baskets on the floor at the end of checkouts. The pursuer relied solely on CCTV footage in support of their claim that the supermarket employees should have seen where customers were leaving their baskets. The court found that the CCTV did not support the allegations of a lack of reasonable care. One of the supermarket employees had inspected the area just minutes before the baskets were left and the incident took place. The claim was therefore unsuccessful.

The court noted that the pursuer had failed to lead evidence.

It was subsequently argued that the defender should be entitled to recover its costs under the QOCS exceptions. The defender submitted that the pursuer acted manifestly unreasonably in proceeding with her claim as, in short, she failed to lead any positive evidence to support the many claims of negligence in her written pleadings and she ought to have known that the available evidence could not prove her case. It was also submitted that this amounted to an abuse of process as she continued the action despite being aware that it was bound to fail.

The court refused to disapply QOCS and the defender had to meet its own costs. It was noted that the court may have interpreted the CCTV differently, and the pursuer may have succeeded in her claim. She could not therefore be said to have acted manifestly unreasonably, as the court’s findings were “not inevitable”. In turn, this was not an abuse of process as the case did not have no or substantially no prospect of success.

Although each case will turn on the individual circumstances, the court emphasised what we already expected, that the bar to establish any of the exceptions under section 8(4) is a high one. The court is not concerned with the pursuer’s prospects of success, but with “obviously unreasonable” behaviour. The conduct must be “exceptional”.

This is likely to be the first case of many where a defender seeks to recover its costs and we await with interest an example of what the court regards as “exceptional”.

Related News, Insights & Events