QOCS in Scotland: do I pay the other side's expenses if I lose?

The fear that stops most people making a claim is not the solicitor's fee. It is the thought that losing might leave them owing the other side's legal costs. In Scotland, that risk is much narrower than most people expect, because of a rule called qualified one-way costs shifting.

What QOCS actually does

The ordinary rule in civil litigation is that expenses follow success: the losing party pays the winner's legal expenses. Applied to personal injury, that rule made claiming risky for anyone without insurance.

QOCS changes the rule so that it runs one way. Under section 8 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018:

• If you win, you can normally recover your expenses from the defender in the usual way.
• If you lose, the court will normally not order you to pay the defender's expenses.

"Qualified" is the important word. The protection is the default, not a guarantee, and a court can take it away in defined circumstances.

When protection can be lost

The 2018 Act allows a court to disapply QOCS where the pursuer or their representative has behaved in particular ways in connection with the claim. Broadly, these cover:

• Fraudulent representation — making a fraudulently false or misleading statement about the claim.
• Manifestly unreasonable behaviour — conduct in connection with the claim that goes well beyond ordinary litigation disagreement.
• Abuse of process — using the court process for an improper purpose.

The threshold is deliberately high. Losing a claim, or being disbelieved on a point of evidence, is not by itself misconduct. But the protection assumes you are honest about how the accident happened and about the effect of your injuries.

Verify the current conditions and any procedural requirements against the Act itself and current court guidance before relying on them. This page describes the general position, not advice about your claim.

What QOCS does not cover

QOCS deals with the defender's expenses. It does not, by itself, deal with:

• Your own solicitor's fee. That is governed by your success fee agreement, which normally provides that no fee is payable if the claim fails.
• Outlays. Court dues, medical reports and expert evidence are paid out as a claim progresses. Ask your solicitor, in writing, who bears them if the claim fails and whether insurance covers them.
• Tenders. If the defender lodges a formal offer (a tender) and you carry on but do not beat it, you can become liable for expenses from that point. This is a real risk in an otherwise successful claim, and it is why offers deserve careful advice.

How QOCS changed the role of insurance

Before QOCS, After the Event insurance was the standard answer to the risk of paying the other side's expenses, and much of what is written online still assumes that. Since QOCS, the statutory protection does most of that work in Scotland. Insurance may still be arranged, often to cover outlays rather than adverse expenses. If you are offered a policy, ask what it actually covers and when any premium becomes payable.

Scotland and England are not the same here

England and Wales has its own version of QOCS, introduced separately and operating under different rules and exceptions. Guidance written for England does not describe the Scottish position, even where the acronym is identical. If you are claiming in Scotland, check that what you are reading is about Scots law.

What this means in practice

For most honest claims that are properly presented:

• there is nothing to pay upfront;
• there is no legal fee to your own solicitor if the claim fails;
• you will not normally be ordered to pay the defender's expenses if you lose;
• if you win, a success fee is deducted from your damages, and most of your expenses are recovered from the defender.

That is a genuinely protective position. It is not the same as "no risk", and any firm telling you a claim carries no risk at all is overstating it.

Sources

• Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, section 8
• Scottish Courts and Tribunals Service
• Law Society of Scotland

Last reviewed: 2026-08-08 by the Personal Injury Claims Scotland editorial team