What is QOCS?

Qualified One-Way Cost Shifting (QOCS) applies to all claims concerning damages for death or personal injury commencing after 1 April 2013.

When you commence a claim, whether it is a claim for debt recovery or breach of contract, the judge will decide who pays the legal costs. The normal rule is that the loser pays the winner’s legal costs. For example, let’s say you made a claim for £30,000 and spent £8,000 in legal costs. If the judge at trial awarded you the full sum of the unpaid invoices, you have effectively “won”. Therefore, the defendant would be responsible for paying the majority of your legal costs.

With the introduction of the QOCS regime, this normal costs rule does not apply to personal injury claims.

QOCS offers the person pursuing the claim (the claimant) protection from the normal costs rules. In brief, if the judge awards the claimant damages and interest, but awards costs in the defendant’s favour, he may only award costs up to the level of damages that the claimant receives. For instance, let’s say the judge awarded the claimant £5,000 at trial. However, the claimant had failed to beat a previous offer made by the defendant, so the judge awarded the defendant his costs. In this case, the maximum amount of costs that the defendant could recover would be £5,000. It also therefore follows that if the claimant is unsuccessful and “loses” their claim, then the defendant will not be able to recover any of their legal costs.

Exceptions

There are some exceptions to the QOCS regime. If any of these exceptions were found to apply to the claim, QOCS may be disapplied and the Claimant would be responsible for paying the cost of the defendant’s legal fees.

Briefly, the exceptions are:

  1. If the claim is “struck out”. (This can be because it is an abuse of process and/or because of claimant’s conduct);
  2. The judge finds that the claim is, on the balance of probabilities, “fundamentally dishonest”; or
  3. The claim is for the financial benefit of another. (For example, where the claim for personal injuries forms part of a wider claim for housing disrepair).

Fundamental dishonesty

This is an allegation that is on rise in personal injury claims that defendant solicitors are more frequently advancing.

If a claimant is found to be fundamentally dishonest, this has very serious implications for the claim. QOCS protection will be disapplied and the claimant will be responsible for paying the full extent of the defendant’s legal fees.

If you are a genuine claimant, this exception is nothing to be concerned about. Defendants are only successful in this argument where claimants have acted in a fraudulent and deceitful manner. For example, recently a court found that the claimants were dishonest as they had faked their alleged accident. They had also supplied their solicitors will false documentation and grossly exaggerated their claim for damages.

My next article will consider fundamental dishonesty in more depth and will look at some cases where this allegation has been successful.

Your solicitor should always advise you of any risks associated with pursuing your personal injury claim, including what may happen if your claim proceeds to a trial. If you have a query about a potential personal injury claim, contact our specialists today. Call us on 0800 988 7756 for a free initial consultation.