August 22, 2019

Scotland: Commencement orders for Civil Litigation Act expected in coming months

The question of when the provisions of the Civil Litigation (Expenses and Group Proceedings) Act will come into force looks set to be answered.

Whilst the Act received Royal Assent in 2018, a commencement order giving effect to it has not yet been introduced. However, our information is that two separate commencement orders, addressing different parts of the Act, will be issued in the coming months.

Commencement Orders

We understand that the first order, relating to the use of Damages Based Agreements in Scotland, is expected to be issued in December 2019.

A second order, implementing Qualified One-Way Costs Shifting (QOCS) in Scotland, is expected to be issued in the first few months of 2020.

The delay to the second order is due to the need to finalise the Court Rules addressing the agreed exception to QOCS where the defender lodges a successful Tender. The exception will maintain the purpose of tendering, which would be lost if there is no sanction in expenses in the event that the pursuer fails to beat the Tender.

The Personal Injury Committee of the Scottish Civil Justice Council ("SCJC") recommended that there should be an exception to costs protection for post-tender expenses, but that the pursuer’s liability in expenses should be capped at 75% of the damages awarded.

With that in mind, the first draft of the amended Rules has already passed before the Personal Injury Committee earlier this year, and will be considered by the Costs and Funding Committee of the SCJC in the coming weeks. Once agreed, we expect that the amended Rules will again be considered by the Personal Injury Committee before final approval is sought from the SCJC itself.

This protracted process makes it unlikely the amended Court Rules will be approved and put in place before the end of 2019, thus delaying the issue of the expected second commencement order.

QOCS protection

It is not yet known whether QOCS protection will benefit pursuers in court actions raised after the commencement order comes into force (irrespective of whether the accident occurred before that date) or will only cover pursuers whose accidents occur after that date.

A further update will be provided once additional information is available.