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Published 6 July 2023
Gilchrist v Chief Constable, Police Scotland (Expenses)  2 WLUK 646
This is the first case to deal with the question of what constitutes fraudulent misrepresentation in the context of QOCS and the second since Lennox v Iceland Foods Ltd  12 WLUK 459 to look at what could be deemed manifestly unreasonable behaviour.
The pursuer (G) was working as a clinical support worker in a hospital, treating a disruptive patient who had been taken there by police officers who had to restrain him. G had been injured but exactly how was in dispute. G alleged that she had been asked by one of the officers to apply restraints to the patient and had been injured doing so.
The matter went to proof and the sheriff assoilzied the defender (D). He did not accept that the injury happened as G was applying the straps, did not accept that she had done so in any event or that she had been instructed or even invited to do so.
Defender's motion on expenses
D's motion sought an award of expenses pursuant to the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (the Act) on two grounds which, if proved, would discharge QOCS:
Fraudulent misrepresentation - Pt 2 s.8(4)(a)
D argued that, in finding that the injury was not caused in the way alleged by G, the only logical inference was that the sheriff had found G to be incredible. Having regard to the sheriff's findings on the evidence, it was reasonable to argue that the logical conclusion was that G had lied about the whole scenario on which her claim was based.
Manifestly unreasonable - Pt2 s.8(4)(b)
This issue had been discussed in Lennox. D argued that it was difficult to see how putting forward a factual basis for a claim which was not accepted could be anything other than manifestly unreasonable behaviour.
D also referred to the action having been raised three months after a psychiatrist's report was provided by G without any reference being made in it to the mechanism of the accident later relied on by her. D submitted that G's agents ought to have considered its significance and delved deeper to elicit a clear position.
The sheriff agreed with counsel for G in that, for fraudulent misrepresentation to be made out, the court was required to find that G and/or her agents had intentionally tried to mislead it.
The sheriff referred to his own judgment following the proof and said there had been two competing accounts of the accident. He had preferred the account given by the police officers, but he had not made a finding that G was either incredible or that her evidence had been deliberately untrue.
The threshold for a finding under 8(4)(a) had not been met.
Given that he had not found G to be incredible but had simply preferred the police evidence, the threshold for manifestly unreasonable conduct had not been met.
So far as the psychiatrist's report was concerned, there was a difference between a report which was silent on the salient points and one containing a contrary position to that raised by a pursuer on record and at proof. Persisting with the latter might be enough to get over the 8(4)(b) hurdle but persisting with a report which was silent on the issue did not point to manifestly unreasonable behaviour.
Early on in this hearing, counsel for G raised the issue that, pursuant to the Ordinary Cause Rules, an application for an award of expenses to be made against the pursuer must be made in writing which it had not been in this case. The point was not taken further on the day but the sheriff said that, in future, the court expected all applications under OCR31A to be in the form of written motions "duly intimated and lodged in accordance with the usual requirements of OCR 15 or OCR15A".
Both this case and Lennox show that, where two differing accounts of the same incident are put to the court, it does not mean that the evidence not accepted is automatically potentially fraudulent or that there has been unreasonable conduct. Counsel for G in this case admitted that the court had preferred D's evidence, but
"Just because one version was preferred to another did not give rise to a fraudulent misrepresentation, or even manifestly unreasonable behaviour."
The sheriff agreed with this view.
Both Lennox and this case confirm that the hurdle over which defenders have to jump to obtain rulings in their favour on QOCS is very high. It could also be argued that neither Lennox nor this case was, perhaps, ever going to provide the necessary springboard to enable a successful jump to be made.
Interpretation of the rules is now so narrow that it is becoming increasingly difficult even to secure an award for expenses in circumstances where the pursuer discharges a proof at a very late stage in the proceedings. It is difficult to envisage circumstances in which a Sheriff would make a finding of fraud, which would result in the disapplication of QOCs.
In our experience, even the most blatant lies about the mechanism of the accident which would be more than likely found to be fundamentally dishonest in England & Wales is considered simply as unreliable in Scotland.
Indeed, we would prefer to see legislative change to introduce the equivalent of section 57 CJCA 2015 in order to take these QOCS arguments forwards more successfully and we continue to press for such change.
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