Court in no hurry to disapply QOCS for Murray

This case review was co-authored by Cameron Tait, Trainee Solicitor, Edinburgh.

Qualified one-way costs shifting (QOCS) has been in effect in Scotland for several years now. However, the courts have only recently begun to issue a steady stream of decisions on the subject. Here, we take a look at a new judgment issued by the specialist Personal Injury Court in Edinburgh.

Background

The action arose from a road traffic accident on 29 July 2021. Following a diet of proof, Sheriff Campbell granted a decree of absolvitor. On 14 August 2023 the matter came before him again on the issue of expenses. This was a case where QOCS applied.

The defender sought to disapply QOCS on the grounds of manifestly unreasonable conduct under section 8(4)(b) of the Civil Litigation (Expenses and Group Proceedings) Act 2018. This ground was considered in the case of Lennox v Iceland Foods [2022]. The court held that the test for manifestly unreasonable behaviour is, “meant behaviour which was obviously unreasonable”.

In the present case, the defenders argued that “the pursuer’s narcolepsy and the conflicting and unreliable account of events from the driver amounted to exceptional circumstances.” There were fundamental inconsistencies in the pursuer’s case. The forgetfulness caused by her narcolepsy, and the inconsistency of evidence from the driver was said to be critical. Reference was made to Gilchrist v The Chief Constable of Police Scotland [07.02.23], “where the court held that persisting in the face of contrary evidence might amount to manifestly unreasonable behaviour.”

“The pursuer’s position was that there was nothing exceptional or out of the ordinary about the circumstances before the court.” It is “not uncommon, counsel submitted, in road traffic accident cases for there to be at least two versions of events.” “All that was required was that the pursuer was found to be reliable on her own without her husband’s [the driver’s) evidence.”

Court's decision

Sheriff Campbell found that the pursuer’s account of the accident in her evidence was broadly in line with her pleaded case. However, the account given by her husband, who was driving the car, differed in a number of important respects. As such, it was held that her husband was not regarded as a reliable witness.

It is clear that Sheriff Campbell was unimpressed by the evidence of a key witness for the pursuer, but that is not of itself sufficient to make the pursuer’s conduct manifestly unreasonable. There were also concerns about her reliability, but these were based on matters external to her evidence. Again, that was not, in Sheriff Campbell’s opinion, sufficient to meet the threshold of manifestly unreasonable conduct.

Accordingly, the defender’s motion for expenses was refused.

Comment

This case serves as a reminder that despite the emergence of several cases where QOCS has been disapplied, there is still a high threshold to be met. Each case in which the issue of disapplying QOCS arises must be considered on its own merits. It would appear that the courts are still reluctant to disapply QOCS.