The rules prevent awards of costs being made against those raising personal injury actions, other than in limited circumstances, including where a Pursuer makes a “fraudulent representation or… acts fraudulently”, “behaves in a manner in which is manifestly unreasonable”, or “conducts the proceedings in manner that the court considers amounts to an abuse of process”. Almost 18 months later, the first reported decision on the application of two of these exceptions has been handed down.

Helen Lennox v Iceland Foods Ltd concerned an accident in the Defenders’ store in Glasgow. The Pursuer tripped over several shopping baskets left near a checkout, sustaining injuries. She argued the shopping baskets should have been stored elsewhere and that the Defenders failed to take reasonable care to keep their store free from hazards. The Pursuer and her daughter gave evidence. CCTV footage from the store was viewed and the Pursuer argued it supported her case.

Sheriff Fife was not persuaded; the claim failed. The Defenders had reasonable systems in place and CCTV footage did not show any failure in that regard. They could not reasonably have cleared the hazard without it being brought to their attention before the accident occurred.

Steven Smart is a Partner and Head of Glasgow office, Horwich Farrelly

The Defenders sought to argue that QOCS should not be applied as the Pursuer had behaved in a manifestly unreasonable manner and the proceedings amounted to an abuse of process. Essentially, the Defenders sought to argue the case was without merit and bound to fail. Their motion was refused. The Sheriff considered these exceptions to the general rule were deliberately designed to be “high tests”, otherwise the aims of QOCS would not be achieved.

Of note was Sheriff Fife’s interpretation of the relevant provisions and how they are to be applied. When the rules were drafted, some thought “manifestly unreasonable” must amount to the legal test of Wednesbury unreasonableness; conduct must be so unreasonable that no reasonable person acting reasonably would have done so in that way. Sheriff Fife rejected this view. It is not the test in the statute. The term “manifestly unreasonable” can be interpreted by applying its meaning in plain English. It means conduct that is “obviously unreasonable”.

There was no dispute about what is meant by “abuse of process”. The question is whether the action and its progress compromises the integrity of the court’s procedures. In this action, Sheriff Fife was of the opinion that for the test to be met, it was not a case of considering whether the Pursuer was likely to lose, but rather whether there was no, or substantially no, chance of success.

The Defenders sought to argue the tests were met for a number of reasons, primarily because CCTV footage was lodged and allegations were made in written pleadings but not supported by other evidence, such as an expert health and safety report. However, it had been agreed the CCTV footage was genuine and accurate.

Sheriff Fife was of the opinion that the footage was detrimental to the Pursuer’s case, but acknowledged it was at least possible it could have been interpreted differently. Thus, the Pursuer had not acted in a “manifestly unreasonable” way. This was not a case where the Pursuer had no or substantially no chance of success and it did not constitute an abuse of process.

The first written decision on QOCS exceptions will undoubtedly not be the last. While identifying the exceptions as being a high bar, the Court has clarified that manifestly unreasonable conduct is not the extremely high test some thought it to be.

Steven Smart is a Partner, Horwich Farrelly

Iceland case gives clarity on personal injury claim cost award rules - Steven Smart