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Published 1 agosto 2023
Love v National Health Service Fife Health Board  SC EDIN 18. Sadly for the defender, the outcome was the same as in the first two cases concerning the discharge of the QOCS presumption.
You are referred to our previous Alert "QOCS in Scotland: Round 2" in which we discussed the decision in Gilchrist v Chief Constable, Police Scotland  2 WLUK 646.
The pursuer's (P) mother died in 2018. P intended claiming against the health board in respect of the care which her mother had been given.
P's original agents requested an extension of the time bar which was granted by the defender (D). P's agents ceased acting shortly after. D agreed a further extension after agreement with P direct. By this agreement, proceedings had to be raised by 16.11.22 otherwise the claim would be regarded as time-barred.
A further agent was instructed a few days before the timebar who sent an initial writ and a request for a warrant for service to the Sheriff Clerk. Three further amended initial writs were sent before service was finally effected on 12.12.22, three weeks after the expiry of the timebar. No motion for a sist to allow investigation or legal aid was made which is perhaps surprising as P had obtained no evidence as to liability or causation at this point.
On 12.1.23 the CLO emailed P's agent offering to "drop hands" if P abandoned the action but no response was received.
Defences were lodged on the same day together with a motion seeking decree of absolvitor with expenses being awarded to D because the action was timebarred, lacked specification and relevancy and P did not have title to sue. P's second agents withdrew from acting on 13.3.23.
Summary decree was granted on 27.4.23 by Sheriff Fife with expenses reserved. The sheriff found that the action was time-barred, that P needed to have been appointed as executrix-dative in order to pursue the action, legal aid had been refused and P had no supportive causation report.
QOCS in Scotland was introduced by section 8 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. QOCS will operate where two criteria are satisfied: that the claim is for a personal injury or death and that it has been conducted in an appropriate manner. In s.8(4) inappropriate conduct is defined as (a) making a fraudulent representation, (b) behaving in a manifestly unreasonable manner or (c) conducting the proceedings in such a way that it amounts to an abuse of process.
Motion to discharge QOCS
D raised a motion to disapply the rules on the ground that P/her previous agent's conduct had been manifestly unreasonable or they had conducted the proceedings in such a way as to constitute an abuse of process.
The court was asked to find the agent/P liable for expenses up to the date of withdrawal and find P liable for expenses from the date of withdrawal.
The sheriff said that P's second agent had only received instructions some two or three days before the expiry of the agreed extension to the timebar. The question for the sheriff was whether the agent had been "manifestly unreasonable" in raising proceedings and effecting service as soon as possible.
Her agent's view had been that P had a stateable case with a reasonable chance of success. The sheriff doubted whether this view was sustainable when there was no favourable report on causation over four years after P's mother's death. In addition, because P had not been appointed executrix-dative, she had no title to sue. However the sheriff found that there was no criticism to be made of the agent given the very late instructions and, in so doing, perhaps could be described as construing s8(4)(b) of the Act a little narrowly. The sheriff's view was, that while it may have been unreasonable to raise the proceedings it was not manifestly unreasonable to have done so.
Abuse of process?
Given that the motion for summary decree was heard so early in the process, the agent had no opportunity to continue the proceedings when there was no chance of success and, therefore, the test for abuse of process was not met.
The court found, in essence, that P's own conduct had been neither manifestly unreasonable nor an abuse of process.
For these reasons, the sheriff refused D's motion.
This case follows Lennox v Iceland Foods Ltd and Gilchrist v Chief Constable, Police Scotland in that the court refused to overturn the QOCS presumption. The difference between these and Love is that there was never any suspicion that P's case was in any way fraudulent. Indeed, it had not developed as a case in any meaningful way at all before being summarily dismissed and it is this which caused the sheriff to find against D on the point. As the sheriff said:
"If there had been further substantive procedure and/or if the pursuer and (the agent) had persisted on (sic) continuing with the action over a period time when it had no or substantially no chance of success, the circumstances might well have been exceptional."
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