Changes to Qualified One Way Cost Shifting

A new rule change is to be implemented from the 6th April 2023 which will see costs set off brought back to QOCS cases. Defendants will also be able to enforce Costs Orders up to “the aggregate amount in money terms of any orders for or agreements to pay or settle a claim for, damages, costs and interest”. This would include cases concluding by way of acceptance of a Part 36 offer or Tomlin Order.

What is QOCS?

QOCS stands for Qualified One-Way Costs Shifting and was introduced in April 2013 to provide Claimants in Personal Injury claims with protection against liability to pay Defendants’ legal costs if they are unsuccessful with their claim, save for in limited circumstances. A Defendant was not able to recover their legal costs unless one of the following applied.

• The claim is struck out (under certain conditions)
• The Claimant is found to be fundamentally dishonest
• The Claimant fails to beat the Defendants’ Part 36 offer

The rule changes have reversed the effects of Cartwright –v- Venduct Engineering Limited and Ho v Adelekun that a Defendant could only enforce in respect of orders for damages (as opposed to settlements) and cannot enforce in respect of a Claimants’ costs at all.

The changes to the QOCS rule will be updated to cover deemed costs orders and agreements to pay damages. This means that acceptance of Part 36 offers and Tomlin Orders will now be recognised under the QOCS rules and importantly where claims settle under these types of agreements then a Defendant will be able to enforce its costs against damages, interest and any Claimants’ costs.

This rule change only applies to claims where proceedings are issued on or after the 6th April 2023.

It is evident that with these new changes, Claimants will now have more risk in personal injury claims than before and Claimants will need to consider carefully the costs consequences of a Defendants’ offer making a Defendants’ offer much more powerful than before.

We have the skill and experience to negotiate settlement in PI claims. The vast majority of our claims are settled without the need to issue proceedings and this more than ever will be crucially important to minimise the risk to our clients as a Claimant in personal injury claim proceedings in relation to costs.

If you require advice or representation regarding a personal injury claim then please contact us. We offer an initial, free consultation regarding any potential claim.