Another QOCS knock back for defenders

The case of Elizabeth Love v National Health Service Fife Health Board [2023] 23 Edin 18, is the latest case to highlight the battle defenders face in attempting to persuade the court to find an exception to the rules set out in Section 8 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 when considering the application of Qualified One -Way Costs Shifting.

The judgement in this case once again afforded the pursuer protection from a finding of expenses against her despite the perceived inadequacies in her case which Sheriff Fife found “unusual, but not exceptional.” This of course follows the Sheriff’s findings in the previously reported case of Lennox v Iceland Foods Ltd [2022] SC Edin 42. When considering the circumstances in Love, the message seems to be re-iterated from Lennox that the circumstances of the case will have to be “exceptional” to satisfy the test of manifestly unreasonableness to be successful.

In Love, the pursuer, daughter of the late Letitia Love, sought legal advice in relation to a claim for clinical negligence in respect of the care her late mother received before her death on 28 October 2018. The triennium was thought to expire on 9^th October 2021. An initial extension was agreed. On 22 March 2022 the pursuer’s agents withdrew from acting. Direct communication continued between the pursuer and the defender which led to further extensions of the triennium.  

On 13 November 2022 the pursuer instructed GS Watson Law. An Initial Writ was sent to the court on 15 November 2022. Further amended versions were sent on 23 and 24 November 2022. Service of the warranted writ was finally effected on 12 December 2022.

On 27 April 2023, the court granted Summary Decree on the grounds that 1) the pursuer did not have title to sue; 2) the action being time barred; and 3) that there was no compelling reason why Summary Decree should not be granted.  

At the hearing on expenses the defender moved the court to disapply the rules in relation to expenses in terms of Section 8 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 on the basis that the pursuer and/or her legal representatives behaved in a manner which was “manifestly unreasonable” and/or “conducted the proceedings in a manner which amounted to an abuse of process”.

The defender submitted that the exceptional circumstances which had to arise to disapply QOCS had been met. They highlighted that she had no supportive evidence on causation; her agent ought to have known (had he carried out enquiries) that she had no title to sue and that she was refused legal aid due to lack of evidential basis for a clinical negligence claim. The defender submitted that both the pursuer and her agent’s conduct was manifestly unreasonable in terms of section 8(4)(b) in that the litigation procedure was not appropriate and “obviously unreasonable”. The defender further submitted the conduct of the pursuer’s agent was an abuse of process in terms of section 8(4)(c) as the action had no chance of success at the time of raising the action which had amounted to a waste of court time and public funds.

The pursuer simply disputed she had behaved in a manifestly unreasonable manner. She wanted the court to look at her “side of the story” and as she had applied for legal aid, she was not led to believe that she would be liable for any expense.

Mr Watson submitted that the defenders had “effectively encouraged” the pursuer to raise proceedings by extending the triennium. He submitted that he had accepted instructions at “the 11^th hour” and was unable to conduct a thorough review of the papers before raising proceedings. He submitted that it was his bona fide opinion that the pursuer had reasonable prospects of success and that he obtained special urgency legal aid cover to initiate proceedings. SLAB did not refuse the legal aid application until 17 March 2023. He also submitted that he had conducted proceedings in an appropriate manner and that the defender had failed to satisfy the terms of section 11 of the 2018 Act that he had committed a serious breach of his duties.

Decision

Sheriff Fife referred to the decision in Lennox v Iceland Foods Limited 2022 SC Edin 22 at paras [4] and [6] and the comments in respect of the 2018 Act when arriving at his decision. He re-iterated that each case must be considered on its own facts, circumstances and context. In this case despite failing to understand how the pursuer’s agent could have formed his bona fide opinion that the pursuer’s case had reasonable prospects of success, he was not prepared to conclude it was manifestly or obviously unreasonable to do so. It was also held that the test for abuse of process had not been met as there was no opportunity to continue the action as summary decree had been granted.

However, Sheriff Fife offered the view that had there been further substantive procedure, and/or if the action had continued over a period of time when it had no or substantially no chance of success, the circumstances may well have been exceptional and therefore sufficient to disapply QOCS.

Comment

This is the third reported decision considering the disapplication of QOCS which demonstrate that qualifications to the costs shift under consideration i.e. fraudulent representation, manifestly unreasonable behaviour and an abuse of process are high bar tests in the Scottish courts. However, as with all cases, they each turn on their own facts and we shall have to watch with interest on what develops in coming months on this hotly discussed topic.