14 Dec 2021
by Louise Houliston, Rory Jackson

However, some pieces of legislation have received Royal Assent and the switch to digital hearings has sparked a contentious consultation process. Against a backdrop of the new norm, it remains to be seen how the mechanics of these changes will operate and be interpreted by the Scottish Judiciary.

Redress schemes

The Redress for Survivors (Historical Abuse in Care) (Scotland) Act 2021 received Royal Assent on 23 April 2021. This legislation is designed to establish an alternative redress scheme (the Scheme) to raising civil proceedings, giving survivors of historical abuse a more accessible means of justice through financial and non-financial redress. 

The Scheme is on track to open for applications before the end of this year for survivors of abuse occurring before 1 December 2004. Currently, the intention is to keep the Scheme open for five years, although this can be extended by Scottish Ministers if approved by Parliament.

The Scheme will be funded by the Scottish Government with contributions being received from many interested organisations. It is intended that relevant organisations will provide ‘fair and meaningful’ contributions to the Scheme, assessed on the level of applications for redress concerning them and any potential payments that may follow. In doing so, the organisations must also agree to publicly and explicitly recognise the harm or wrongful acts faced by survivors.

Survivors will be able to apply for a fixed rate redress payment of £10,000 or an individually assessed redress payment which will involve a more detailed examination of their experience. These individually assessed payments are set at £20,000, £40,000, £60,000, £80,000 or £100,000. After a robust recruitment process, the Redress Scotland panel is made up of 20 members, with different backgrounds ranging from redress boards in other jurisdictions such as Northern Ireland and England and Wales, social work, education, legal enforcement, legal practice, psychology, and the charity sector.

Redress Scotland will assess the applications, while Scottish Ministers will monitor contributions. If they are ‘fair and meaningful’, the organisation will be granted a ‘waiver’. This document will be signed by any survivor who is accepting redress funds relating to a relevant organisation. On doing so the survivor accepts they must not raise or continue any civil court proceedings against that organisation.

Across the border, the Independent Inquiry into Child Sexual Abuse (IICSA) was established in 2015 to consider the extent to which state and non-state constitutions failed to protect children from sexual abuse and exploitation. The inquiry continues to focus on investigating accountability and reparations. They concluded that further investigation is required into the potential for a redress scheme to offer accountability and reparation to victims and survivors. However, no formal redress scheme has yet to be established. Helen Snowball, a partner in our Sheffield office, leads Kennedys’ Local Authority and Abuse Team, can provide advice or guidance on these topics. 

Qualified One-Way Cost Shifting (QOCS)

2021 has also brought Qualified One-Way Cost Shifting (QOCS) to Scotland. The Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 received Royal Assent in 2018, with Section 8 being the relevant QOCS section. 

This provides that, where a person brings an action for personal injuries, or death, and has conducted the proceedings in an ‘appropriate manner’, the court must not make an award of expenses against the person in respect of any expenses relating to the claim itself, or any appeal.

This legislation should have been enacted in spring 2020 but, like many things, the timetable for bringing QOCS to Scotland and putting flesh on its bones was impacted by CVOID-19. It came into force on 30 June 2021, with the specific rules published at the start of June. It is anticipated (much like the Redress Scheme) that it will take some time for everyone to get to grips with the new rules and procedures. 

QOCS is intended to increase access to justice and certainty and the rules are not retrospective. Section 8(4) of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 states that ‘in order to recover costs, defenders or ‘applicants’ will have the onus of showing that the pursuer or the pursuer’s representative’:

  • Has made a fraudulent representation or has otherwise acted fraudulently in connection with the claim or proceedings.
  • Has behaved in a manner which is manifestly unreasonable in connection with the claim or proceedings.
  • Conducted the proceedings in a manner that the court considers amounts to an abuse of process.

The burden of proof, on the balance of probabilities, is on the applicant.  There are no statutory definitions of what constitutes a ‘fraudulent representation’, ‘acted fraudulently’, ‘manifestly unreasonable’ conduct or ‘conducts the proceedings in a manner that the court considers amounts to an abuse of process’. These are essentially new or rare tests for Scotland. 

The rules also allow for applications when the pursuer fails to obtain an award of damages greater than the sum offered by a tender (a formal offer lodged with the court and capped at 75% of the damages awarded); unreasonable delay on the part of the pursuer in accepting a tender lodged in process; abandonment of the action or appeal; and where the pursuer’s case is summarily dismissed by the court.

While the anticipated flurry of litigation and applications have not borne out in reality, the rules are still in their infancy and the pandemic may also have played a role.

Court business goes online

The pandemic also saw the introduction of court documents being lodged online and remote hearings taking place by telephone or via WebEx.

The Scottish Civil Justice Council undertook a consultation covering the mode of attendance at civil court hearings. The Faculty of Advocates, the Law Society of Scotland and many firms on both sides of the civil litigation fence responded to this in November 2021. It has sparked much debate in respect of access to justice and determining the credibility and reliability of witnesses during substantive hearings when they call remotely.

As the door closes on 2021, we anticipate that 2022 will be a year of firsts as the Redress Scheme and QOCS get underway, and technology remains a hot topic. A pilot scheme addressing the mode of attendance at civil court hearings is in discussion and it is anticipated that some hearings will remain remote, but the specifics remain uncertain.