With the introduction of Qualified One-Way Costs Shifting (QOCS) in Scottish Personal Injury claims, injured individuals will have the right to lawfully pursue their claim for damages without the threat of incurring considerable costs from the other side if their claim is unsuccessful. In doing this, the Scottish legal system comes into line with the protections already afforded to their English counterparts (with QOCS being introduced there in 2013).

However, you will only be afforded the protection of QOCS if you ensure you do not:

1. make a fraudulent representation
2. behave in an unreasonable manner when pursuing the claim, or;
3. otherwise, conduct the proceedings in a manner that the court considers amounts to an abuse of process.

What is considered to be fraudulent/fundamentally dishonest?

Although there is no comparative legislation in Scotland, section 57 of the Criminal Justice and Courts Act 2015 (England and Wales) allows the court to dismiss an action for personal injury if it is satisfied that the person bringing the claim (the “claimant", in England) has been fundamentally dishonest about their claim as a whole or in part. There have been many examples of this in recent times, and insurance companies make great efforts to advertise these “successes.”

How will this translate to Scotland?

As stated above, there is no legislative equivalent of “fundamental dishonesty" in Scotland, however, this has not prevented insurance companies from pushing for the courts to make findings of fundamental dishonesty on the part of Pursuers.

In the recent case of Grubb v Finlay, the defending insurance company attempted to have G’s claim struck out on the basis that he had exaggerated his injuries to the extent that his claim was “fundamentally dishonest”. At first instance, the Lord Ordinary accepted that there was discretion to dismiss an action if a “fair trial is impossible, or if there is a fundamental dishonesty on the part of the pursuer, or if there is an abuse of process”. However, although the initial sum sued for was £500,000, the pursuer was awarded £7,500. The Lord Ordinary held that the pursuer had a genuine (albeit an exaggerated) claim, and refused to use his discretion to dismiss the action.

The decision was appealed to the Inner House. Keeping in line with the Lord Ordinary’s findings, they held that the pursuer “did not make a fundamentally dishonest claim...he made a good, if exaggerated, claim”. Basically, they (and the Lord at first instance) accepted that the pursuer had not been candid in the presentation of his claim; however, they did find that he had suffered a genuine injury. Accordingly, he was awarded damages for the injury he was found to have suffered.

It is widely believed that, if the claim had been heard in an English Court, the action would have been dismissed under Section 57 of the 2015 Act. With the introduction of QOCS in Scotland, it is expected that the courts will be asked to rule on many more claims where fundamental dishonesty is plead by the Defenders. Time will tell whether the two legal systems will remain as far apart as they are now.

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