Credit Hire in Scotland: What QOCS Actually Changed (and What Handlers Should Do About It)

Disclaimer: This note is general guidance, not legal advice.

Scottish defender firms have been vocal in recent weeks about a rising tide of litigation and what they see as the role of Qualified One-Way Costs Shifting in driving it. The Motor Accident Solicitors Society has offered a pursuer-side response, and the argument is now playing out in industry journals and the national press.

For credit hire handlers running Scottish cases, the commentary matters less than the underlying rules. Here's what QOCS actually changed, where it sits nearly five years on, and what it means for your case strategy.

What QOCS is, in plain terms

Qualified One-Way Costs Shifting was introduced by the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. The rules came into force on 30 June 2021, so we've now had almost five years of live application.

The core principle is straightforward. An unsuccessful pursuer in a personal injury claim is generally protected from paying the defender's expenses. It applies to personal injury claims including those with credit hire attached, which is why it matters to anyone running motor claims north of the border.

There are three headline exceptions. The court can disapply QOCS where the claim is fraudulent, where there has been an abuse of process, or where the pursuer's conduct has been manifestly unreasonable. Those exceptions are the balance point the whole system sits on.

How QOCS changed credit hire litigation economics

Before QOCS, the costs risk of losing was a real brake on marginal claims. CMCs and pursuer firms had to pick their battles carefully, because a contested case that didn't succeed could leave a client, or their funder, on the hook for the defender's expenses.

Post-QOCS, that downside shrinks. Cases that previously would have settled pre-action or been dropped entirely now push further into litigation. The numbers bear this out, and defender firms have been open about it in recent industry commentary.

For handlers, the practical reality is this. Expect more Scottish cases to reach proof, expect more fraud allegations to be raised pre-litigation, and expect more scrutiny of your pursuer's conduct than you saw two or three years ago.

The fraud question

This is where the heat is right now, and it needs to be handled carefully.

Defenders can, and do, ask the court to set QOCS aside where fraud, abuse of process, or manifestly unreasonable conduct is established. That's the system working as designed. The friction is over what's being raised pre-litigation. Pursuer-side commentary has pointed to a pattern of blanket fraud concerns being raised in early correspondence, sometimes on nothing more than a delay between accident and intimation.

There is now Scottish appellate authority on exactly this point. In Natalie Manley v Thomas McLeese [2024] SAC (Civ) 16, the first reported Sheriff Appeal Court decision on QOCS, the court held that the threshold for a finding of fraudulent representation is a high one. Simply preferring one party's evidence over another's does not, on its own, justify stripping QOCS protection. The Sheriff Appeal Court overturned the first instance decision to disapply QOCS, sending a clear signal that fraud is not a label to be reached for lightly.

There is also no statutory deadline for intimating a claim other than the three-year limitation period. A defender "concern" about late intimation, without more, is unlikely to meet the fraud threshold. But it creates noise, and for busy handlers it creates pressure to respond.

The right operational answer is simple. Treat every Scottish file as if QOCS will be challenged. Build it that way from day one, document everything, and don't let a blanket fraud allegation pull you off the protocol.

What this means for your Scottish credit hire playbook

Five things worth banking.

1. Intimate promptly and keep a clear audit trail. Late intimation isn't a legal problem in itself, but it's increasingly being used as a hook for fraud concerns.
2. Front-load the evidence. Impecuniosity, need for hire, rate benchmarking, and mitigation should all be in the file before any pre-litigation correspondence goes out, not bolted on after the defender pushes back.
3. Plan for litigation. Don't price or resource Scottish cases on the assumption they'll settle pre-action. An increasing share won't.
4. Know the route. Most Scottish credit hire matters go through the Sheriff Court, with the All-Scotland Sheriff Personal Injury Court in Edinburgh handling specialist personal injury work.
5. Track defender tactics. Blanket fraud denials are now a recognised pattern. Log them, evidence them, and lean on Manley v McLeese where the threshold for fraud hasn't been met.

The takeaway

QOCS isn't a pursuer advantage. It's an access-to-justice mechanism with built-in safeguards for defenders where claims cross the line. The Sheriff Appeal Court has now made clear in Manley v McLeese that those safeguards work both ways. The threshold for stripping a pursuer's QOCS protection is a high one, and it isn't met simply because a sheriff prefers one witness over another.

For credit hire handlers, the real shift is operational. Cases that used to settle on costs risk now need litigation-grade evidence from day one. Handlers who adapt their file build to match will see the same claims resolve more predictably, whichever side of the border they sit on.

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