Kelly Brotherhood: ‘A fraudulent representation’ for Qualified One-way Costs Shifting in Scotland

Kelly Brotherhood: 'A fraudulent representation' for Qualified One-way Costs Shifting in Scotland

Kelly Brotherhood

A recent decision provides much welcome clarity on the application of Qualified One-way Costs Shifting (QOCS), writes Kelly Brotherhood.

Some may feel that, like buses, we can wait a long time for an established qualification to the Scottish costs shift in personal injury litigation to turn up. Well, also like buses, three have turned up at once.

At a hearing on expenses, or costs, on 16 August 2023 at the All-Scotland Personal Injury Court following proof at which the sheriff determined that liability did not attach to the defender, three qualifications to the costs shift were established – fraudulent representation, manifestly unreasonable behaviour, and abuse of process. Expenses were then awarded in favour of the defender against the pursuer.

In this case, having found certain key aspects of the pursuer’s evidence at proof “incredible”, the sheriff found that the pursuer “made a fraudulent representation by lying about the circumstances of the accident”. This was also “manifestly unreasonable behaviour” and “an abuse of process”. The intention to mislead was key to the finding of a fraudulent representation.

This follows Beverly Gilchrist v Iain Livingston, Chief Constable of Police Scotland, Sheriff Campbell KC, ASPIC, 7 February 2023, where the court found that, for a fraudulent representation “the court would require to make a finding that a pursuer or his or her legal representative had acted intentionally to mislead the court”.

In Gilchrist, the court had not made a finding that the pursuer’s evidence was “incredible” or “deliberately untrue” and the test for “a fraudulent representation” was not met. The findings of “incredible” and an intention to mislead made the difference in the August 2023 case, with the sheriff then awarding costs against the personal injury pursuer.

Kelly Brotherhood is a senior associate at Clyde & Co

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