David Hennessy

Historically, expenses followed success. In Scottish personal injury actions, QOCS now applies, as it has done in England and Wales for many years.

Following the introduction of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, there are now limited circumstances in which a defender is entitled to recover their costs (Section 8(4)).

In circumstances where the defender wants to seek to recover their costs, they must show that:

• The claimant made a fraudulent misrepresentation (or otherwise acted fraudulently) in connection with the claim.
• The claimant behaved in a manifestly unreasonable manner in connection with the claim.
• The claimant conducted the proceedings in a manner that amounts to an abuse of process.

Following a successful defence in the case of Lennox, the defender sought to argue that the claimant had behaved in a manifestly unreasonable manner and that the proceedings had been conducted in what amounted to an abuse of process. Keoghs sought to argue that the claim had no real prospect of success and that the court ought to disapply QOCS in the circumstances.

The crux of the argument was that the claimant had set out a written case in the pleadings and had failed to take steps to attempt to prove that case with the required evidence. The claimant had been invited to discontinue on several occasions through the course of claim.

The facts were that the claimant tripped over shopping baskets which had been left at the head of a checkout in the defender’s store. Only the claimant and her daughter gave evidence. The claimant said that the defender had failed to adhere to its own policy for removing hazards but did not lead evidence in relation to any policy. The claimant relied entirely on CCTV evidence to demonstrate a breach of the Occupiers’ Liability (Scotland) Act 1960 – a failure to take reasonable care to keep the store free from hazards. Ultimately, in a short ex tempore decision, the sheriff found that the CCTV did not demonstrate a lack of reasonable care on the part of the defender. It showed an employee of the defender having inspected the area around three minutes before the incident, and prior to the baskets being left.

The defender’s subsequent application to disapply QOCS was refused. The decision is the first published under the new court rules (Ordinary Cause Rule 31A). It sets out how the court is likely to approach similar motions in future. The decision clarifies the court’s approach to the meaning of “manifestly unreasonable” and also conduct which might amount to an abuse of process.

The sheriff found that the term “manifestly unreasonable” is not complicated, it is something which is “obviously unreasonable”. It is a high test and the circumstances are likely to be exceptional. Manifestly unreasonable was to be distinguished from abuse of process otherwise there was no necessity for the alternative provision.

The Sheriff accepted that an abuse of process was as defined in Macphail’s Sheriff Court Practice:

“…misuse of the procedure of the court in a way which…would nevertheless be manifestly unfair to a party to the litigation, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied. It is an abuse of process for a Pursuer unreasonably to initiate or continue an action when it has no or substantially no chance of success…The concept of an abuse of process would include the making of false statements of fact based on fabricated documents, but it is not confined to fraud…The essential question is whether the action compromises the integrity of the court’s procedures. It might do so if it wastefully occupied the time and resources of the court if the claim was obviously without merit.”

The sheriff found that the claimant had not acted manifestly unreasonably on the basis that the court might have interpreted the CCTV in a different way, resulting in the claimant succeeding with her claim. In addition, it followed that there was no abuse of process as this was not a case which the sheriff felt had no or substantially no chance of success.

Following the decision, Keoghs lead casualty partner, David Hennessy, said: “This is the first reported decision testing the parameters of the rules on QOCS exceptions in Scotland. Perhaps that is not a surprise. QOCS exceptions are by their very nature, exceptional. Around 18 months after their introduction, we continue to await clarification around the fraud exception and what amounts to “a fraudulent misrepresentation in connection with the claim.

“The term ‘abuse of process’ is well known in Scotland. Although the circumstances are varied, abuse of process is typically associated with conduct of a more egregious nature and the description of it in the quotation above amounting to the raising or continuing with a court action without real prospect of success might on one view be an oversimplification of the underlying case precedent. Abuse of process is ordinarily understood to be a matter of some significance. It is likely that only the most plainly unmeritorious claims will be considered in this category.

“However, the decision takes us a small step forward in understanding how the Scottish specialist personal injury court will determine what amounts to manifestly unreasonable behaviour. The court reiterated that each case will be considered on its own facts and circumstances, and that what it is concerned with is obviously unreasonable behaviour. Could the pursuit or persistence of an unmeritorious claim be obviously unreasonable? The test is described as a high one. Clearly, any claim featuring a material factual dispute will not meet the test but it will be of real interest to defenders to see whether the court might in future provide any disincentive to claimants, empowered by QOCS, from pursuing poor claims where any reasonable assessment of the evidence would conclude that it was bound to fail.”