What happens if I lose my claim in Scotland?

This is the question people actually want answered before they pick up the phone, and it is the one most sites answer with a slogan. Here is the position, broken into the three things that could theoretically cost you money.

1. Your own solicitor's fee

Under a success fee agreement, your solicitor is paid only if the claim succeeds. If it fails, no fee is due. The solicitor carries the cost of the work they did.

That is the whole point of the arrangement, and it is the part that genuinely is straightforward.

2. The defender's expenses

This is the risk that worries people most, and in Scotland it is largely removed by qualified one-way costs shifting under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. A pursuer who loses is generally not ordered to pay the defender's expenses.

It is qualified, though. A court can disapply the protection where there has been fraudulent representation, manifestly unreasonable conduct, or an abuse of process. For an honest claim, properly presented, that is not a realistic concern — but it is why "no risk whatsoever" is not an accurate description.

There is also the tender point. If the defender makes a formal offer and you press on without beating it, you can become liable for expenses from that date. That is not really "losing", but it is a way of ending up worse off, and it is why offers should be considered carefully rather than reflexively rejected.

3. Outlays

Outlays are the sums paid out while the claim runs: court dues, medical reports, records, expert evidence. Under most arrangements the solicitor funds them as the case progresses, and many firms insure them so they are not passed on if the claim fails.

This is the item to pin down in writing before you sign, because it is the one that varies between firms.

So is no win no fee really free if I lose?

For most claims: you pay your solicitor nothing, you do not pay the defender's expenses, and outlays are covered. That is as close to no downside as litigation gets.

But "free" and "no risk" are not quite the same thing, and it is worth understanding the difference:

• a success fee is deducted if you win;
• QOCS protection can be lost through misconduct;
• outlays may be payable depending on your agreement;
• rejecting a reasonable offer can expose you to expenses.

Anyone who tells you a claim carries no risk at all is simplifying to the point of inaccuracy. A solicitor who explains these four points to you plainly is doing their job.

What to ask before you commit

1. If the claim fails, what will I owe, and to whom?
2. Who pays the outlays if it fails — and is that insured?
3. What would happen if I rejected an offer you advised me to accept?
4. What happens if I decide to stop the claim part-way through?

Ask for the answers in writing.

Related guides

• No win no fee in Scotland
• Success fee agreements
• QOCS in Scotland
• Expenses and outlays

Sources

• Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018
• Success Fee Agreements (Scotland) Regulations 2020
• Scottish Legal Complaints Commission

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