Commentary on Sections The structure of the Act Part two – Periodical payments of damages Section 5 — Liability for bearing expenses in case
49.Section 5 of the Act inserts new section 2J into the 1996 Act and limits the circumstances in which courts may make awards of expenses against the injured person in proceedings for variation, suspension or lifting of suspension of a periodical payment under an order or an agreement. Section 8 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (“the Civil Litigation Act”) makes provision for a qualified one-way costs shifting (QOCS) regime in Scotland for personal injuries, including clinical negligence. New section 2J makes specific provision, similar to that applying generally under the Civil Litigation Act, applicable to qualifying proceedings (as defined in subsection (3)) and appeal proceedings (as defined in subsection (4)). Where the proceedings relate to an agreement to pay damages by way of periodical payments subsection (5) affords precedence to any provision in the agreement that differs from that which would otherwise apply by virtue of section 2J. Subsections (6) and (7) align section 2J with the Civil Litigation Act so that the prohibition on the awarding of expenses is also subject to any exceptions provided for in Acts of Sederunt under section 8(6) of that Act and so that the issue of whether proceedings have been conducted “in an appropriate manner” falls to be determined in accordance with section 8(4) and (5). Subsection (9) defines “injured person” so as to include a representative such as a guardian or judicial factor where the qualifying proceedings or appeal proceedings are not run in the name of the person who suffered the injury.