Scottish Government is dragging its heels over review of personal injury costs
It’s long past time for a change in priorities, writes Natalie Gibb
Tony Blair once said: “It is not an arrogant government that chooses priorities, it’s an irresponsible government that fails to choose”. I agree. Government, like life, is about priorities. Choice of priorities depends on what matters most at a particular time. This is where disagreement can come in. We are all entitled to think differently on what should be prioritised and when. We are all entitled to question government priorities.
In an article published in this newspaper in December 2025, my colleague, Vikki Melville, considered Qualified One-way Costs Shifting (QOCS) in litigated Scottish personal injury claims. QOCS gives general protection to claimants against paying expenses, or costs, should their litigated personal injury claim fail. This general protection is subject to certain qualifications.
Vikki noted that “On a timescale ‘as soon as practicable’ after 5 June 2023, the Scottish Government has been, and is, under a legislative requirement to review, and report on, QOCS, including on whether proposals to modify it are to be brought forward and, if not, why not. We anticipate seeing action from Scottish government on this, most likely by way of a pre-review consultation, in 2026 if not before”.
No such consultation has yet been launched. We may, therefore, conclude that this is not a high priority for the Scottish government. We think that it should be, especially because the review has been required by law for almost three years now, subject to the “as soon as practicable” point. We may, therefore, also conclude that the Scottish government does not consider that it has yet been practicable to review QOCS.
It is interesting, in this context, to reflect on a consultation on personal injury law reform that the Scottish government chose to launch towards the end of 2025, that closed to responses on 28 January 2026. Part of this consultation was about inflation, in two distinct contexts, both related to personal injury law.
The first context concerned the Scottish personal injury discount rate, on how allowance for inflation should be factored in when it is set, given the impact of rising costs on future losses such as care and earnings when these are compensated by a lump sum.
The second context was the provisions that should be made for inflation when a court orders that future loss should be compensated in periodical instalments instead of a lump sum.
It is perhaps puzzling why this consultation, in these two respects, was prioritised over a consultation on QOCS. The next standard review of the Scottish personal injury discount rate is scheduled for 2029, so determining the provision to be made for the incidence of inflation on it is not currently urgent. Court-imposable periodical payment orders (PPOs) were legislated for in 2019 but remain, at present, incompetent in Scotland because of ongoing delay in implementation of that legislation. Given the lack of momentum to enable court-imposable PPOs in Scotland, questions around how inflation should be addressed in that context are not currently pressing.
We think that a review of QOCS is urgent, because the current system is, in our view, driving an increase in questionable litigation behaviours. Government chooses its priorities and, borrowing Tony Blair’s point, it is irresponsible not to choose. On QOCS, though, the Scottish Parliament has already influenced choice, by force of law – the Scottish government is required to review and report on it “as soon as practicable” after 5 June 2023.
Natalie Gibb is a partner at Clyde & Co