Keoghs secures QOCS ‘manifestly unreasonable’ disapplication against pursuer’s legal representative

A recent decision of the All-Scotland Sheriff Personal Injury Court provides important guidance on when failures by a pursuer’s legal representative cross the threshold from carelessness into “manifestly unreasonable” conduct for the purposes of disapplying Qualified One-Way Costs Shifting (QOCS).

In McKillop v Woods, Sheriff Nicol disapplied QOCS and made an award of expenses against the pursuer’s legal representatives, following the late discharge of a proof to allow further medical investigations.

Keoghs Scotland acted for the insurer as part minuter in successfully disapplying QOCS protection.

Background

The pursuer was involved in a road traffic accident in June 2023. Orthopaedic evidence obtained in October 2023 suggested that symptoms were likely to resolve by June 2024. Proceedings were raised in May 2025 and progressed in the usual way, with a two‑day proof on quantum fixed for April 2026.

An extra-judicial offer was made in August 2025 and rejected in September 2025. The pursuer lodged their Statement of Valuation of Claim in October 2025. A Pursuer’s Offer was lodged in November, followed by the minuter lodging a costs protective Minute of Tender a few days later. The Tender was rejected within the week.

A pre-trial meeting took place in March 2026. No settlement was achieved and the proof remained necessary. In late March 2026, the pursuer lodged a second Pursuer’s Offer.

The pursuer was re-examined by the orthopaedic expert the week before proof; the pursuer indicated that she had ongoing pain and discomfort. She was unsure if this was attributable to the accident.

The day prior to the proof, the pursuer’s legal representatives sought a discharge of the diet of proof. Parties agreed to a discharge on the basis that a hearing on expenses and further procedure would be assigned. The party minuter thereafter sought QOCS disapplication on the basis of “manifestly unreasonable” conduct.

The legal framework

There was no dispute as to the applicable law. Parties were agreed that:

• QOCS should only be disapplied in exceptional circumstances;
• “manifestly unreasonable” means obviously unreasonably, not mere ineptitude or carelessness; and
• each case is fact specific, and the court retains a direction.

The party minuter founded upon the repeated failures of the pursuer’s agents, over an extended procedural history, to ascertain whether the pursuer had in fact recovered in line with prognosis – despite numerous opportunities to do so, particularly in the context of settlement discussions.

Decision

Sheriff Nicol was clear that no criticism attached to the pursuer personally. The Sheriff’s analysis instead focused squarely on the professional obligations of the pursuer’s legal representatives. Those acting for pursuers must take reasonable steps to ensure that the case is presented accurately, including reviewing and updating medical evidence at appropriate stages in the litigation.

The court identified that obligation was most acute:

• when advising during the course of settlement discussions; and
• at a pre-trial meeting, where there is a positive obligation to explore settlement.

Meaningful advice cannot be given without confirming whether symptoms have resolved as anticipated.

While early failures might properly be described as careless or inept, Sheriff Nicol emphasised that there comes a point at which repeated omission becomes manifestly unreasonable. 

That point was reached, in the court’s view, by the pre‑trial meeting in March 2026. By then, there was no satisfactory explanation for the continued failure to discuss the pursuer’s medical position and identify the need for updated expert evidence. Had that review taken place timeously, further medical opinion could have been obtained in sufficient time to allow the proof to proceed – or negotiations to be revisited – without the disruption caused by a last‑minute discharge.

The explanation that the case had passed between multiple handlers was “not an excuse, merely an explanation”.

The court granted the party minuter’s motion and disapplied QOCS, making an award of expenses against the pursuer’s legal representatives, limited to:

• expenses of process from the date of the pre‑trial meeting up to and including the discharged diet of proof; and
• expenses of the QOCS motion itself.

Implications and comment

This decision reinforces that QOCS remains a strong protection, but not an unqualified one. While pursuers will not be penalised for uncertainty in medical outcome, their legal representatives are expected to actively manage and review the medical position as a case progresses.

In particular, the judgment identifies the pre‑trial meeting as a critical point at which ongoing symptoms must be explored. Failure to do so may transform what would otherwise be excusable oversight into manifestly unreasonable conduct, with real costs consequences.

For insurers and their representatives, the decision offers a clear and practical framework for future challenges to QOCS where procedural failures have real and avoidable cost consequences.

Andrew Agnew – the Keoghs Scotland Solicitor who ran the successful expenses hearing – said:

“This decision provides helpful clarity for insured clients that QOCS protection is not unconditional. Where avoidable failures in case management lead to late disruption of proof, the court will adopt a pragmatic and proportionate approach to costs”.

If you would like to discuss anything mentioned above further, please get in touch.

Andrew Agnew – Solicitor

E: AAgnew@keoghs.co.uk