Recently, Scottish Defender Agents have produced a series of articles in Industry Journals and in The Scotsman newspaper bemoaning an increase in the number of litigated cases in Scotland and suggesting that Qualified One-Way Costs Shifting (QOCS) is something that requires to be looked at as they consider it to be giving those pursuing claims an unfair advantage. There is clearly a concern in the Insurance industry that Scotland’s refusal to treat road traffic accidents in the same way as the Courts in England treat them is proving too costly for them.
Since the introduction of QOCS in Scotland, the number of litigated cases has increased. This is not unforeseeable. QOCS allows individuals access to justice where they might previously not have had that. The Scottish Courts, together with the majority of Pursuer Agents, have always taken a robust approach to dealing with potentially fraudulent claims, ensuring that they are weeded out at the earliest possible stage in litigation. As we have seen in recent years, Defender firms are taking a strong stance on fraudulent claims and that is something that we at Dallas McMillan have no issue with as fraudulent claims only serve to waste Court time.
Fraud Allegations in Scottish Personal Injury Claims
With no doubt one eye on their panel membership, Defenders Agents in Scotland have become very vocal about fraudulent claims and, in doing so, create the false impression that there are more fraudulent claims than in fact exist. Some firms have chosen to take an approach pre-litigation that runs entirely contrary to the Compulsory Pre-Action Protocol. We have received responses to intimations suggesting that the firm instructed “have concerns” about the claim because it was not intimated immediately after the accident. Other than the rules regarding limitation, there is no deadline by which a claim must be intimated. Unless we are expected to travel in our client’s vehicles so that we can intimate claims immediately post-accident, I fail to see what purpose these blanket fraud accusations serve. All they do is frustrate a legitimate process.
When met with these blanket fraud denials, we advise the other side that we are not accepting their position, proceed to instruct medical evidence and thereafter litigate as the Protocol permits. The majority of these cases however could be resolved pre-litigation if the firms dealing with them took the time to consider each claim on its own merit rather unjustifiably cry fraud.
QOCS in Scotland and the Balance of Personal Injury Litigation Costs
Unfortunately, we find ourselves in situations where we have no alternative other than to litigate cases because Defender firms are taking a wholly unreasonable blanket approach to road traffic accidents. The existence of QOCS means that clients who are unjustifiably accused of presenting a fraudulent claim can address that matter in litigation. If for any reason the claim is found to be fraudulent, the Defenders can ask the Court to have QOCS set aside. That is where the balance is struck. The existence of QOCS does not give Pursuers an unfair advantage. It gives Pursuers access to justice but if the Pursuer abuses that process, they will be penalised. That is one point that the increasing number of articles we are seeing expressing concerns about litigation in Scotland fail to mention.
Ultimately, agents on both sides can agree that fraudulent claims ought to be stamped out. Reaching a stage where fraudulent claims are all but removed from litigation will take both sides working together to deal with this matter. At present, the Defender approach of an immediate presumption of fraud followed by the almost predictable news articles will only cause more litigation, increase costs and lead to larger bills for Insurance Companies.
The Motor Accident Solicitors Society
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Get The Balance Right – Increased Litigation In Scotland’ was first published in MASS Insight Magazine, and was written by David J McElroy, Partner at Dallas McMillan Solicitors.