Your Personal Injury Claim, and Qualified one Way Costs Shifting
Posted on 28th December 2023
Much to the chagrin of those nasty Defendant lawyers, as of April 2013 Qualified one way costs shifting (QOCS) entered the legal arena, and applied it's terms to the clients of accident injury solicitors, accident claim solicitors, road traffic accident solicitors, personal injury solicitors Preston, road accident solicitors, solicitors who deal with medical negligence and accident compensation solicitors. As a result of QOCS, clients who have suffered a personal injury, will not, unless specific circumstances apply, be ordered to pay the costs of the successful Defendant.
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If you’re wondering how this will affect your personal injury claim, then MG legal your personal injury solicitors Preston, can confirm that the news is good news! QOCS applies to all personal injury cases post April 2013, unless there is a Conditional Fee Agreement/ATE policy in place, pre-dating April 2013.
And then the news got better (or worse if you’re a defendant accident injury solicitors) with the case of Arabella Wagenar v Weekend Travel Limited & Anor [2014] WLR(D) 389. The case of Wagenar confirmed that QOCS can actually be applied retrospectively, if a personal injury claim has been pursued from before April 2013 without a CFA or ATE Premium, then QOCS will apply.
MG Legal’s no win no fee injury solicitors are often approached by clients who want to transfer their claim for personal injury to one of their solicitors in Longridge, Garstang, or solicitors in Lancaster or Preston- this can be done simply by filling in a transfer Authority, allowing your previous road traffic accident solicitors to release your file of papers. The news was even better for a while as the case of Julie Casseldine v Diocese of Llandaff Board for Social Responsibility (a charity) (2015) established that where a pre-April 2013 CFA had ceased and a post April 2013 CFA had been entered into (with different Solicitors) a person making a claim using an accident claims solicitor, would still enjoy the benefit of QOCS. This is however now not the case: as confirmed by the Court of Appeal in Catalano v Espley-Tyas Development Group (2017) where the Claimant entered into a Conditional Fee Agreement (CFA) or After the Event (ATE) insurance premium before 1st April 2013, the benefit of QOCS is excluded from QOCS by CPR 44.17. This applies even where the Claimant subsequently entered into a post 1st April 2013 CFA or ATE.
As you will no doubt see, when QOCS was introduced, personal injury solicitors (well, the ones who are claimant personal injury solicitors) were indeed, very happy. However, as with everything in life, there is a fly albeit a relatively small one, in the ointment, and any solicitors in Preston, Lancashire should be able to advise you that there are certain situations in which QOCS will not apply. And these are:
1. If a client has their claim struck out, and the grounds for the strike out are that:
there was no good reason to bring the claim for personal injury
bringing the claim for personal injury is an abuse of process
the conduct of the client (or their legal representatives) is likely to obstruct the just disposal of the proceedings.
2. The case was fundamentally dishonest.
3. The client fails to beat a defendant's Part 36 offer (an offer of settlement made by the defendant, with an option to accept within 21 days of receipt of the offer).
With the introduction of QOCS, many Defendant accident injury solicitors and road traffic accident solicitors (including many Lancaster solicitors) were up in arms, labelling the new process an easy way for clients who have suffered a personal injury, to bring capricious claims, tying up the best medical negligence solicitors with fabricated claims, which would be, if successful, worth tens of thousands of pounds in compensation, with the injured party, subject to QOCS, suffering no risk in the event that their personal injury claim was unsuccessful.
The good news is that QOCS takes away much of the fear of losing a personal injury claim. Historically , if an injured person brought a claim all the way to court, and then lost, they would be ordered by the court to pay the Defendant's costs of defending the claim. What QOCS allows is the freedom for an injured person to bring a claim, and not have the onus of paying costs, subject to a finding of fundamental dishonesty, in the event that the personal injury claim is unsuccessful.
Defendant personal injury lawyers will argue that this has opened the door to an influx of capricious injury claims. Obviously, QOCS is not designed to allow such claims, and the same would certainly not be tolerated by your local personal injury solicitors- there would be no point; when a claim is found to be embellished, or fabricated, nobody wins.
Your personal injury solicitor has worked on a NO WIN NO FEE basis, and will receive no costs. The author of the fabricated injury claim, the vexatious litigant, will receive no damages by way of compensation, and your choice of personal injury solicitors are, subject to the terms of the Conditional Fee Agreement with you, able to ask you to pay their costs of the personal injury claim.
When QOCS was introduced, our solicitors in Morecambe, and Lancaster, noticed a flurry of new personal injury claims come through the door, as did our Longridge office. But we were vigilant, and did our due diligence checks and whole-heatedly believe that QOCS has not caused those injured to make false claims- it has simply, thankfully, allowed those who are unfortunate to have been injured, to seek justice. Long live QOCS, and the NO WIN NO FEE Agreement!
December 2023 update from our No Win No Fee Solicitors
In June 2023, the High Court has largely upheld the protection of qualified one-way costs shifting (QOCS) in a ‘mixed’ claim, except to penalise the unsuccessful claimants over an unsatisfactory expert witness.
As a result, Mrs Justice Hill ordered them to pay 5% of the costs of Derbyshire County Council and Derbyshire Police after finding this only had a “very modest” impact on the costs of the case.
Her ruling in ABC & Ors v Derbyshire County Council & Ors, Re Costs [2023] EWHC 1337 (KB) followed her substantive decision to reject claims of human rights breaches, negligence and false imprisonment brought by two parents and their children.
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