The Civil Litigation (Expenses and Group Proceedings) Act received Royal Assent in 2018, yet the commencement order giving effect to the introduction of Qualified One-Way Costs Shifting (QOCS) into Scotland has yet to be implemented.
The introduction of Damages Based Agreements in Scotland, which was also provided for within the Act, came into effect on 27 April 2020 following the introduction of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (Success Fee Agreements) Regulations 2020.
Whilst we had expected that the commencement order relating to QOCS would be issued in the first few months of 2020, it would appear that this has been delayed further.
The continuing nature of the delay has raised concern amongst practitioners who have held off raising proceedings in order to ensure that their clients receive QOCS protection.
However, given the ongoing Covid-19 pandemic, and the financial difficulties that many will be experiencing, it would be unsurprising if those pursuers with valid claims would not wish to proceed with these actions as a matter of urgency. Therefore, clarity on the proposed timescales for commencement is an increasing necessity for some practitioners.
Furthermore, as of yet, it is not clear 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.
We ask our clients to note that Clyde & Co understands that the draft rules will be considered this month, with the expectation that upon approval by the Scottish Civil Justice Council, the rules should be in force no later than the end of 2020.
A further update will be provided once additional information is available.
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