09 November 2023

Two further decisions have been issued by the All-Scotland Personal Injury Court on the issue of QOCS. Both judgments come from Sheriff Campbell KC and add to a growing body of case law.

The first case was Carty v Churchill Insurance Co [2023] SC EDIN 31 in which the defender succeeded, for the first time in a reported case, in having QOCS disapplied and the second is Murray v Mykytyn [2023] SC EDIN 32 where the motion was refused.

In Carty, the defender, in making their motion, relied on the conduct of the case being manifestly unreasonable and/or an abuse of process.

During the conduct of the case, which settled just prior to Proof, there had been multiple failures by the pursuer’s solicitor to engage with the defender and to comply with the Court timetable. That included a failure to clarify the name of the pursuer’s GP and, surprisingly, even his date of birth. The reasons given for these failures related to the solicitor’s personal circumstances and the dissolution of their firm. The Sheriff held that the reasons given did not entitle the court to overlook the persistent failures which occurred during the case and that, regardless of the pressures faced by a practitioner, appropriate mitigations should be taken. Although this did not amount to an abuse of process, the conduct of the litigation had been manifestly unreasonable and the defender was found entitled to the expenses of the whole action.

Unfortunately, due to that finding, the court did not address the defender’s fall back argument in respect of disapplication of QOCS where there is late acceptance of a tender. Judicial consideration of those rules is still awaited.

In Murray, disapplication was sought solely on the basis of manifestly unreasonable behavior on the part of the pursuer. The motion was made after the defender successfully defended the case at Proof. The pursuer and her husband had given evidence. The sheriff rejected the husband’s evidence as so unreliable that he could not place any weight on it. In contrast, he found that the pursuer’s own evidence was broadly in line with her pleaded case even if he had some concerns about her reliability. He made no finding that the pursuer was an incredible witness. The defender’s evidence was neither incredible nor unreliable and he was therefore preferred. A complicating factor was the pursuer’s narcolepsy, although she claimed this did not affect her memory of the event.

The defender’s submissions focused on the husband’s evidence. He had given contradictory accounts of the accident, including his 999 call and the information provided to his own insurer. They argued this showed that bringing the claim was manifestly unreasonable given this evidence. However, the Sheriff held that this did not amount to the pursuer herself behaving in this way and the application was refused.  

Disapplication of QOCS continues to be fact sensitive and whether to move for disapplication will need to be a decision taken on a case-by-case basis. The bar is, as previous cases have shown, a high one. When an application is being considered, the focus requires to be on the party, or their legal representatives’ conduct. If the case has gone to Proof, then the Sheriff’s decision in terms of any criticism of the pursuer and their witnesses will need to be looked at closely. In the absence of specific findings that a witness has been incredible, or wholly unreliable, succeeding in disapplying QOCS would be challenging.

Lewis Richardson, Senior Associate: lri@bto.co.uk / 0131 222 2939