On Tuesday the Scottish Civil Justice Council (SCJC) published rules which will implement Section 8 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. Section 8 makes provision for a QOCS regime in Scotland for personal injury cases, including clinical negligence. These new rules will come into force on 30 June 2021 and will apply to claims litigated from that date.
It will have a major impact on the handling of all Scottish injury claims.
The main area of contention in drafting the rules and now on assessing their impact is when the benefit of QOCS protection will be lost. While we do not have the term "fundamental dishonesty" in Scotland, the new rules will allow the courts to remove QOCS protection when a claimant either makes "a fraudulent representation", acts in a "manifestly unreasonable" manner or behaves in a way that results in an "abuse of process".
It is paramount importance that insurers work closely with panel solicitors in Scotland to prepare for the inevitable increase in litigation and changes in tactics by claimant solicitors. We will continue to work to increase the courts' awareness of the more unscrupulous practices in Scottish claims and ensure any past reticence to accept that fraud exists in Scotland is challenged head-on.
DWF engaged closely with the Scottish Government on the legislative process bringing about the new QOCS regime. We gave evidence to the Scottish Parliament and successfully argued for changes to the legislation. With our market-leading counter-fraud team we are in a prime position to advise clients on strategies and provide practical advice and training that will become crucial in this new era.
"These long-awaited rules now provide more clarity on how QOCS will operate in Scotland post-30 June. All insurers with exposure to Scottish injury claims need to understand the effect of these rules, and in particular the arguments to deploy when exceptions to QOCS can be sought."
Andrew Lothian, Partner & Head of General Insurance (Scotland), DWF
We would encourage you to add our Virtual Conference Save the Date to your calendar. This conference will principally address the impact of QOCS in Scotland.
The invitation with a full agenda will be sent next week.