This case review was co-authored by Dawn Leckie, Trainee Solicitor, Edinburgh.
The position in Scotland relating to qualified one-way costs shifting (QOCS) continues to develop. Following on from the recent decision in Murray v Mykytyn [16.10.23], in Carty v Churchill Insurance Company Limited, the court was once again faced with a motion to award expenses against the pursuer.
The claim arose from a road traffic accident on 10 May 2021. A letter of claim was issued and liability was admitted. A settlement offer was made on 8 April 2022 for the sum of £3,700. Court papers were served swiftly on 30 May 2022. A tender of £3,700 was lodged on 10 August 2023. The pursuer failed to intimate productions, finalised pleadings or a valuation. The defender sought information by way of a court order, only to be told by the GP practice that the pursuer had the GP details and more surprisingly, the incorrect date of birth.
On 27 October 2022, the defender lodged their valuation and highlighted that no documentation had been lodged by the pursuer in respect of quantum. On 16 December 2022, no progress had been made and the defender therefore updated the court by way of email. On 13 February 2023, the pursuer lodged a motion to vary the timetable. Unsurprisingly this was opposed but ultimately granted and a proof was assigned for 21 March 2023, then later reassigned for 9 May 2023, with expenses in the defender’s favour.
On 4 May 2023, the pursuer advised they would be accepting the tender.
The defender’s arguments were founded on the fact that they made a pre-litigation offer at the same value of the tender that was accepted 11 months later. On that basis, they submitted that expenses ought to be awarded on the Compulsory Pre-Action Protocol Scale. Secondly, it was argued that the defender ought to be awarded judicial expenses as it was manifestly unreasonable for the pursuer to raise an action and then accept the tender five days before a proof, when they could have taken the offer pre-litigation. The defender pointed out that the pursuer missed five dates on the court timetable. They considered this to be “highly unusual and exceptional”, and went beyond the threshold of ‘manifestly unreasonable’ set out in the two recent cases of Love v Fife Health Board [21.06.23] and to Lennox v Iceland Foods .
The pursuer’s opposition to the motion was that the action had “not been raised in bad faith, there was no question of fraud, or of an ulterior motive”. They genuinely considered the valuation to be above the tender accepted. However, they claimed that the Tender was accepted only because they could not reach their expert witness. The Court was not impressed with this submission.
In the Sheriff’s view, the overall management of the case by the pursuer’s solicitor was unsatisfactory. There was a persistent failure to adhere to dates in the court timetable, and a lack of engagement with the defender’s agent. He also acknowledged that these factors were not the fault of the pursuer personally, but that of her agent’s.
The Sheriff considered quantum to be a live issue at the time of raising the action, and on that basis was unable to restrict the pursuer’s expenses to those of the CPAP scale. It was not considered an abuse of process. He went on to say that whilst there was a degree of sympathy for the pursuer's solicitor's professional situation, ultimately he found that the lack of engagement and the constant failure to comply with the timetable did amount to “manifestly unreasonable” behaviour in terms of the 2018 Act. Therefore, QOCS was disapplied and an award of expenses in favour of the defender was granted.
As we know, the case law on QOCS is developing quickly – it is the hot topic for the personal injury world. The court has reasserted that expenses are not automatic for pursuers if they fail to conduct litigation properly.
Related item: Court in no hurry to disapply QOCS for Murray