Qualified One Way Costs Shifting (QOCS)


15 April, 2013

A crucial part of the Jackson reforms is the introduction of qualified one way costs shifting (QOCS). QOCS represents a significant departure from the current regime and is designed to prevent the disproportionate costs of litigation. From 1st April 2013, Claimants will no longer need to take out After the Event insurance premiums to fund personal injury claims.

If a Claimant loses at trial, discontinues a claim or appeals s/he will not be required to pay the Defendant's costs. QOCS only applies to personal injury claims so for instance would not apply in relation to Part 20 proceedings, e.g. a claim brought against a contractor for an indemnity.

There are however limited circumstances when the Claimant will lose the protection of QOCS:

  • If the Claimant is found by a Judge to be "fundamentally dishonest". "Fundamentally dishonest" has not yet been defined but it is widely thought that it will be a lower requirement than the criminal standard which needs to be proved when alleging fraud.
  • If the Claimant fails to beat a Defendant part 36 offer, but only to the extent of any damages and interest awarded to the Claimant.
    If a case is struck out as showing "no reasonable cause of action", is an abuse of the Court's process, or the conduct of the Claimant is obstructing the just disposal of the proceedings. In such situations the Defendant can enforce costs as of right.
  • If a costs order is made against a Claimant, it can be enforced with the court's permission to the extent the court considers it just if the proceedings were brought for the financial benefit of someone other than the Claimant (but not gratuitous care, loss of earnings or medical expenses claims) or for a Claimant in a non personal injury claim, i.e. insurers seeking subrogated losses, repair costs and credit hire.

A court can still make costs orders against Claimants, they are however not enforceable unless there are damages to offset it against. Defendants can not enforce any award obtained against the Claimant until the proceedings have been concluded and costs have been assessed or agreed.

Should you require further information, please contact Siobhan Hardy on 01133 862686


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