Unlike most other chapters in this book, some time will be devoted to the historical background and to understanding the reasons why qualified one-way cost shifting (QOCS) has been introduced into Scottish personal injury litigation. QOCS is the concept that a pursuer in a personal injury claim should not be found liable for their opponent’s legal costs if they are unsuccessful with their claim. The fact that the name includes the word ‘qualified’ means that the rule is not absolute. Exceptions apply. At the time of publication of this book, jurisprudence on the application of QOCS has not developed. Section 8 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (the 2018 Act) and the Act of Sederunt (Rules of the Court of Session 1994) 1994, Sheriff Appeal Court Rules and Sheriff Court Rules Amendment) (Qualified One-Way Costs Shifting) 2021 introducing the relevant new court rules only took effect on 30 June 2021. The application of the new rules will only start to have practical implications as the courts inevitably have to grapple with arguments over the loss of QOCS protection. By looking at the reasons for its introduction, what mischief it is designed to cure and the situations that were contemplated to justify losing QOCS when the Taylor report, Review of Expenses and Funding of Civil Litigation in Scotland, was published, personal injury practitioners may find it easier to shape the arguments for and against the general proposition that QOCS applies in any personal injury action raised on or after 30 June 2021.

The 2018 Act and 2021 regulations are produced at Appendix 1. The commencement order for s. 8 of the 2018 Act is the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (Commencement No. 4 and Transitional Provision) Regulations 2021.

The fundamental reason for its introduction was to promote access to justice. As the Taylor report recognised, the possibility of being found liable for their opponent’s judicial expenses was often a disincentive to claimants from bringing a claim to court, especially, as is often the case, affordable ‘after the event’ (ATE) legal expenses insurance is unavailable. It follows that for access to justice to be improved through the introduction of QOCS there must be certainty for a claimant.