Vikki Melville

Probably the most significant change in the last decade was the opening, in 2015, of the All-Scotland Sheriff Personal Injury Court (ASPIC), in Edinburgh. It’s clear the establishment of this court has been a success. In 2024/25, 6,893 cases were brought at ASPIC, a significant number of actions, particularly when compared to the 652 personal injury cases started in the same year at the Court of Session, an alternative option to ASPIC if the value of the claim is for more than £100k.

Another major change came in 2021 when Qualified One-way Costs Shifting (QOCS) was introduced for all Scottish personal injury litigation. QOCS gives pursuers general protection against awards of costs against them but with specific circumstances in which such awards may be made. This means it is generally difficult for defenders, including the NHS, local authorities, and other publicly-funded organisations, to be awarded costs against pursuers in personal injury litigation even when their defence is otherwise completely successful.

The Scottish government’s aim in introducing QOCS was to increase access to justice. Insofar as that may be taken to mean more cases being taken to court, the current statistics indicate the aim is being achieved. The average annual number of personal injury cases litigated in Scotland in 2017/18 to 2019/20, inclusive, was 9,055. The average yearly number of such cases in 2022/23 to 2024/25, inclusive, was 9,700. 2020/21 and 2021/22 have intentionally been left out of this analysis to reduce any Covid impact and because QOCS was introduced mid-2021.

More detailed interrogation of the statistics reveals signs of even starker contrast before and after the introduction of QOCS. Of the pre-QOCS years considered above, the highest number was 9,443, in 2017/18. The highest number for QOCS-impacted years considered above was 11,129, in 2024/25, with an official projection for 11,575 in 2025/26. So, personal injury litigation is on the up in Scotland and it appears that QOCS is playing a part in that.

Justice, though, should surely be analysed in the round. There remains a good argument that it is unjust for a defender to be vindicated in litigation but not be awarded costs. Moreover, we have detected an increase in the number of less meritorious personal injury claims being litigated following the introduction of QOCS.

On a timescale “as soon as practicable” after 5 June 2023, the Scottish government has been, and is, under a legislative requirement to review, and report on, QOCS, including on whether proposals to modify it are to be brought forward and, if not, why not. We anticipate seeing action from the Scottish government on this, most likely by way of a pre-review consultation, in 2026 if not before.

If QOCS is to remain part of the Scottish legal landscape, the interests of justice require more circumstances in which a defender may be awarded costs against a pursuer to be added and for the existing circumstances where that can happen to be broadened. Such circumstances might include where substantive court hearings are postponed at the instance of pursuers and where pursuers change their written cases beyond the deadline by which that may be done without the court’s permission.

Vikki Melville is a partner at Clyde & Co. This article first appeared in The Scotsman.