The likes of Ellie Reeves MP and Access to Justice (A2J) have expressed their criticisms when it comes to the Civil Liability Bill… now up north, Scotland’s version of reforms in personal injury claims is going to push costs significantly higher, warns Kennedys.
The global law firm cited two key changes that are poised to impact the bill for Scottish insurers and policyholders: contractual and legally enforceable success fee agreements whose percentage will be capped, as well as qualified one-way costs shifting (QOCS).
“Both of these changes will make it a good deal more expensive to defend litigation in Scotland,” noted Edinburgh-based solicitor Rory Jackson, who is lead liability partner for Kennedys in Scotland. “The cap for success fee agreements is likely to move quickly from being a ceiling to the standard figure charged, and as a result claims for compensation will increase in a bid to make up for what the pursuer is losing.
“This might take the form of claims for multiple injuries or increased damages as attempts are made to game the system.”
Such agreements allow the solicitor to take a portion of the successful pursuer’s compensation in return for having taken the risk of not being paid had the case failed. There’s been no decision yet on the cap, but Kennedys said it will likely be around 25%.
QOCS, meanwhile, is aimed at protecting a pursuer from having to pay the defender’s legal expenses if they lose their case, except in exceptional circumstances.
“The problem with QOCS is that most pursuers will be able to carry on with litigation as they want without fear of having to pay the other side,” explained Jackson. “This will both encourage weaker claims, and make it harder to settle cases before they reach court – this in turn will increase the cost of settlement and the overall cost of litigation by stretching out cases unnecessarily.”
The Civil Litigation (Expenses and Group Proceedings) (Scotland) Act received Royal Assent on June 05, 2018. The rules of court to implement the reforms are now being formulated.
