Greg MacDougall: Place for resolution before litigation

Justice might mean different things to different people. The opening scene of The Godfather illustrates this point, if only fictitiously. The Godfather, Don Corleone, played by Marlon Brando, is in discussion with an undertaker. The undertaker explains “I said to my wife, for justice, we must go to Don Corleone.” The Godfather considers that what he is being asked to do “is not justice”. Don Corleone determines himself what “justice” would be in the particular case. He asks the undertaker to “consider this justice a gift on my daughter’s wedding day”.

Greg MacDougall is a Partner and Solicitor Advocate with BLM

Of course, no Scottish legal institution would ever countenance The Godfather’s approach to justice. Nonetheless, if justice is undefinable and immeasurable, potentially meaning different things to different people, how can we properly gauge access to justice?

Issues of access to justice played a crucial role in the Scottish Parliament passing the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. One of the innovations of this Act, though only for personal injury cases, is what has become known as ‘Qualified One-way Costs Shifting’, or ‘QOCS’.

In the past and at present, the costs, or expenses, of a personal injury court case tend to be awarded in favour of the ‘winning’ party against the ‘losing’ party. The traditional mantra is ‘expenses follow success’. QOCS complicates this traditional position. A successful defender in a personal injury case will only be able to recover costs from an unsuccessful claimant if that claimant has acted or behaved inappropriately. The 2018 Act sets out certain circumstances of conduct which will count as inappropriate for costs purposes. Further circumstances which will count as inappropriate are to be set out in court rules to be published before QOCS is bought into force.

Marlon Brando as Don Corleone in The Godfather. Picture: Kobal Collection/Paramount ]

One of the circumstances for a finding of inappropriate conduct under QOCS is where a fraudulent representation has been made by or on behalf of the claimant. The application of this particular point may test the Scottish Courts because, unlike England and Wales, Scotland does not have an explicit legislative basis for dismissal of a personal injury claim by reason of a claimant’s ‘fundamental dishonesty’. One consequence of this is that Scots Law is less sophisticated in its approach to issues of honesty in personal injury claims than the law south of the Border.

As we approach the anticipated implementation of QOCS, it is worth reflecting on access to justice issues in personal injury cases. Statistics on the number of claims taken to court have frequently been regarded as a useful measure by which to gauge these issues. The most recent Scottish Government statistics on personal injury cases taken to Scotland’s Sheriff Courts show a 13 per cent increase in the year 2017/18 compared with 2016/17. At Scotland’s newest Sheriff Court, the All-Scotland Personal Injury Court (ASPIC), which was established on 22 September 2015, 3,282 cases were raised in 2017/18. That figure is an 11 per cent increase on the figure for 2016/17. The cases initiated at ASPIC in 2017/18 account for around 35 per cent of all personal injury litigation raised in Scotland that year. These figures, though only over a short time period, are perhaps not suggestive of a pressing need to further enhance ‘access to justice’ by incentivising personal injury litigation in financial terms.

Under the 2018 Act, the operation of QOCS is to be reviewed by Scottish Ministers as soon as practicable after 5 June 2023.

Statistics on the number of cases taken to court are perhaps not the only matter which should be considered when reflecting on access to justice. Many claims are resolved before they reach court. Resolution before litigation is being actively encouraged and promoted within the Scottish justice system. Recent developments and ongoing initiatives on that include the introduction of a compulsory pre-action protocol for certain personal injury claims, ongoing consideration of further pre-action protocols and a greater focus on pre-litigation communication.

Increased attention is also being drawn to alternative methods for dispute resolution. One alternative to court is mediation. A proposal for a Member’s Bill to promote the use of mediation has been lodged at the Scottish Parliament. This proposal may develop over time.

Whatever the challenges in doing so, access to justice should be kept under review to ensure that it remains fair and balanced.

Greg MacDougall is a Partner and Solicitor Advocate with BLM