For immediate release: Saturday, 23 December 2017
Holyrood’s Justice Committee has issued a report on a piece of draft legislation that would greatly reduce the chances of defenders recovering expenses from an unsuccessful civil claim in Scotland.
Commenting on the report entitled Stage 1 Report on the civil litigation (expenses and group proceedings) (Scotland) bill, MDDUS senior lawyer and practice development manager Joanna Jervis said:
“The introduction of qualified one-way costs shifting (QOCS) will lead to increased costs in defending unsuccessful actions, which may affect our member subscriptions as well as the costs to the NHS more generally. We are disappointed that the committee did not take the opportunity of excluding clinical negligence cases from the QOCS provisions, bearing in mind that this additional burden on the public purse will inevitably restrict the resources available to deliver high quality NHS care.
"We are, however, pleased that the committee has taken on board our written and oral submissions on a number of fundamental issues.
“The committee shares our view that there is a need to reform existing rules on additional fees to prevent a pursuer’s solicitor being entitled to judicial expenses, a success fee and an additional fee. This potentially amounts to triple counting and is not in the interests of justice. Instead, the court or auditor should take account of the extent of any success fee agreement in place.
“The introduction of a compulsory pre-action protocol for clinical negligence cases is something that we have highlighted as an important counter-balance to the introduction of QOCS, to better regulate pre-litigation conduct. Where possible, our philosophy is to resolve meritorious claims at this early stage, before significant costs are incurred on either side. We are pleased that the committee has recognised the need to have sufficient safeguards in place prior to implementation of QOCS for clinical negligence cases.
“We also argued for clarity to ensure that QOCS will be lost where a pursuer fails to beat a defender’s tender (a formal offer of settlement) and where a pursuer’s claim is summarily dismissed. Again, the committee has agreed with our representations on these points.
“In addition, we are heartened by the committee's recognition that more needs to be done on regulation of claims management companies. This needs to be addressed before the bill can come into force."
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Note to editors
MDDUS (The Medical and Dental Defence Union of Scotland) is a medical and dental defence organisation providing access to professional indemnity and expert medico- and dento-legal advice for doctors, dentists and other healthcare professionals throughout the UK.