New legislation introduces a procedure known as “Qualified One-Way Costs Shifting” that applies in civil proceedings for damages for personal injury or death.

This Act of Sederunt provides court rules to support the implementation of Section 8 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018.

The principle of the new procedure is that the court must not make an award of expenses against the person bringing the action (or related appeal), even if the person loses their claim. This is provided the person has conducted the proceedings in an appropriate manner. The Act sets out the exceptions to that principle and provides that court rules may specify further exceptions.

The court rules add a new chapter to each of the Rules of the Court of Session, the Sheriff Appeal Court Rules, the Ordinary Cause Rules and the Summary Cause Rules and provide procedures for handling applications to the court for one-way costs shifting provided for under the Act. 

The rules provide the essential procedural elements that are required to enable the costs-shifting regime to operate effectively in the courts and provide further exceptions to the restriction on the pursuer’s liability for payment of expenses.

The additional exceptions relate to circumstances, in all chapters, where the pursuer has failed to beat a tender or unreasonably delayed in accepting it, or where the action or appeal is abandoned by the pursuer; and, in new chapter 31A, where decree of absolvitor or dismissal (summary decree) has been granted against the pursuer. 

The rules provide for applications to be made in writing by way of motion procedure in the Court of Session, the Sheriff Appeal Court and in ordinary causes in the sheriff court, and by way of incidental application in summary causes. An application must be made before the pronouncing of an interlocutor disposing of the expenses of the action or the appeal.

The rules were made on 28 May 2021 and commence on 30 June 2021.

The rules apply to first instance proceedings commenced on or after 30 June 2021 and to any appeals arising from first instance proceedings commenced on or after the same date.