Qualified one-way costs shifting:
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What is qualified one-way costs shifting?
Qualified one-way costss shifting is a regulation under which clients who have suffered a personal injury cannot be ordered to pay the costs of the defendant, even if they lose their personal injury claim. This allows our personal injury clients the freedom to make a personal injury claim at no financial risk, and safe in the knowledge that they will not have to pay the costs of the defendant.
The introduction of QOCS took away the fear for our personal injury clients to pursue a personal injury claim for their injuries, as they did not have the worries about having to fork out for the costs of the defendant.
What does QOCS apply to?
QOCS applies to all types of personal injury claims, including medical negligence claims, road traffic accident claims, and compensation for accident at work claims.
Are there any exemptions to QOCS?
Yes, there are some particular scenarios in which qualified one-way costs shifting may not apply, and the claimant may be forced to pay the costs of the successful defendant.
These exemptions to QOCS are:
when a claimant or the claim is found to be fundamentally dishonest
when a claimant has not given any reasonable grounds for bringing the claim
where a claimant has failed to beat the defendant’s Part 36 offer to settle. See more
on this here.
where the conduct of the claimant causes an obstruction to justice
What is Fundamental Dishonesty in the eyes of the law?
At the heart of all considerations are the twin qualifiers within the words “fundamentally dishonest”.
The following authorities provide guidance on what fundamental dishonesty means:
1. Alpha Insurance v Roche [2018]: There is a public interest in identifying false claims, and claimants who pursue such claims should be required to meet the costs of the litigation. This was a case involving a contention that the claimant was a phantom passenger: he simply was not present in the vehicle during the admitted Road Traffic Accident.
2. London Organising Committee of the Olympic and Paralympic Games v Sinfield [2018]. A claimant should be found to be fundamentally dishonest if he has acted dishonestly and has thus substantially affected the presentation of his case in a way which potentially adversely affects the defendant in a significant way, and by “substantially affects” it is intended to convey the same idea as the expressions “going to the root” or “going to the heart” of the claim. This was a case involving a claim for new gardening expenses allegedly incurred further to the accident, in the sum of £14,000 or 42% of special damages, when the gardener had in fact been engaged long before the accident, and false invoices had been created.
3. Pegg v Webb [2020] EWHC 2095 (QB): If the dishonesty went to the root of either the whole of the claim or a substantial part of his claim then it would be a fundamentally dishonest claim.
When was QOCS implemented?
Qualified one-way costs shifting was introduced in April 2013, meaning that from this point onwards, personal injury clients are not required to pay the costs of a successful defendant.
Does QOCS apply to small claims?
Yes, QOCS applies to all personal injury claims, regardless of the size of the claim. If you are unsuccessful in your personal injury claim of any size, you will not be required to pay for the costs of the successful defendant.
How does QOCS work?
In essence, qualified one-way costss shifting offers a form of costs financial protection to personal injury claimants.
It does not change the process of pursuing your personal injury claim in any way, but simply allows you to rest assured throughout the process that you will not be made to pay any costs in the event that your personal injury claim is unsuccessful.
Is QOCS means tested?
No, qualified one-way cost shifting is not means tested, and is applicable to all personal injury claims, regardless of the financial situation of the claimant or defendant involved.
Why was QOCS introduced?
When qualified one-way costs shifting was introduced in 2013, it was done so on the recommendation from Lord Justice Jackson and the new Civil Procedure Rules, as a way to protect the claimant from the costs of the defendant in personal injury claims.
It aimed to counter-balance the impact on personal injury claimants of the change to abolish their ability to recover conditional fee agreement (no win no fee) success fees.
