Steven Smart: Appeal clarifies law surrounding QOCS

Steven Smart: Appeal clarifies law surrounding QOCS

Steven Smart

Readers may recall an article published on 1 November 2023 summarising a decision of the All-Scotland Sheriff Personal Injury Court regarding QOCS protection in a multi-defender action. That decision has now been overturned – Steven Smart analyses the appeal case.

The pursuer argued that QOCS should not be disapplied in an action where he had lodged a motion seeking to assoilzie the first defenders. It was said that this did not amount to abandonment, as a formal minute was not lodged and a settlement which was agreed with the second defenders was for the “full value” of the case. Sheriff Campbell KC was persuaded by the submissions and awarded no expenses due to or by the pursuer and first defenders.

The first defenders appealed against the decision. They had issued pre-litigation correspondence setting out a clear denial of liability and in fact went further, providing the pursuer with details of whom they said was responsible for the accident occurring. Despite this, the first defenders were also sued when an action for damages was raised. Their position was restated in the pleadings and insisted upon throughout.

It was submitted in the appeal papers that the correct starting point was to consider the general principles of the law on expenses. Where a pursuer convenes two or more defenders to an action, the pursuer pays the expenses of an assoilzied defender, subject to persuading the court that discretion ought to be exercised to the contrary under the new QOCS provisions.

The central litigation choices rested with the pursuer. His decision to unilaterally end proceedings against the first defenders, without judicial determination of the claim or reaching settlement terms with them, was properly characterised as abandonment.

It was submitted that a formal minute not having been lodged did not matter; this was abandonment at common law. The outcome being dependent solely upon lodging such a document was inconsistent with other decisions of the court in which expenses had been awarded to an innocent defender wrongly sued.

It had been held that the pursuer’s actions brought the action to an end. However, the judgment did not characterise what the pursuer’s actions, insofar as they related to the first defenders, therefore amounted to. Any inability to continue with the action arose solely as a result of the pursuer’s choices and actions, which did not absolve him of a potential liability for expenses.

Separately, it was also submitted that it was inaccurate to say that the pursuer had received a “full value” settlement from the second defenders. He had lodged a Statement of Valuation of Claim seeking a higher sum and a number of pursuer’s offers had already been made and rejected. Settlement negotiations had acknowledged that there were issues concerning contributory negligence and litigation risks. That such an assertion was made at the motion hearing did not make it correct.

The first defenders submitted that the action having in fact been abandoned by the pursuer against them, they ought to recover their expenses. A response to the grounds of appeal was lodged at the outset seeking to uphold the original interlocutor. A hearing on the appeal was set to proceed on 5 March 2024. Both parties had initially instructed junior counsel and latterly senior counsel for the conduct of the hearing.

However, the pursuer subsequently conceded the first defender’s grounds of appeal. Sheriff Principal Ross recalled the original decision and granted the appeal in full, finding the pursuer liable to the first defenders for the expenses of the principal action and the appeal.

This outcome will be noted by those who both pursue and defend personal injury actions. A pursuer cannot seek to avoid the potential consequences of QOCS protection being disapplied in a multi-defender action simply by lodging a motion absolving one or more defenders. Unilaterally ending an action against a party is to abandon it. If that is the case, it will of course remain open to a pursuer to seek to persuade the court to exercise its discretion not to disapply QOCS protection, in all of the circumstances of the individual claim.

Steven Smart is a partner and head of Horwich Farrelly Scotland

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