July 24, 2023
The QOCS rules have been fundamentally changed for all cases issued after 6 April 2023. These changes will affect claimants and the way they pursue their claims.
“QOCS” stands for Qualified One-Way Cost Shifting, a legal term used in litigation. It’s a rule that limits the responsibility of a losing claimant in a lawsuit to pay the legal costs of the winning party. This rule is used to protect the claimant from paying the winning party’s legal costs, with some exceptions.
Essentially, this meant that if a claimant lost a court case, they would be relatively protected from having to pay the defendant’s legal fees, whereas if a defendant lost, they would likely have had to pay the claimant’s legal fees.
What are the changes?
For all cases issued after 6 April 2023 a claimant will have to pay any costs order against them from any agreement to pay or settle a claim for damages costs and interest.
The crux of this rule change is that this puts claimants at greater risk, due to the fact that they have now lost the cost protection which was provided by the previous rule. This change also removes the previous obstacle that defendants faced in terms of enforcing cost orders should they be successful in the case brought against them, even if the claimant accepts a settlement offer or if there are interim costs orders in favour of the claimant. Essentially, claimants will no longer have the same level of protection from paying the costs of the opposing party.
Previously, in many cases defendants were choosing to settle claims as it was often cheaper and more time efficient than contesting the claim and taking the case to court. This was because even if the claim was dismissed (for example, the defendant was not found to be in the wrong) they could not claim the costs back by taking the case to court. Some people feel the change in rules has created a more level playing field as defendants are more likely to contest a claim that they dispute rather than simply paying to settle the case due to the costs of going to court.
The changes implemented aim to restore a sense of balance in terms of costs recoverability for both claimants and defendants. Under the revised rules, defendants are granted the ability to offset any cost order in their favour against the damages, costs, and interest awarded to a successful claimant. However, it is important to note that claims issued prior to 06/04/2023, will continue to be governed by the existing QOCS regime, while claims issued after this date will be subject to the revised rules.
However, some believe that the proposed rule changes are set to introduce increased risks for claimants and their legal representatives, while simultaneously offering greater advantages to defendants and their lawyers, who are commonly funded by insurers. Although defendants may perceive this as a move towards a fairer legal landscape, it could be considered that the changes tip the power balance in their favour. Unfortunately, the victims of these changes are the claimants themselves, who are likely to bear the burden of the increased risks and associated costs. As a result, claimants will have to carefully consider any offer to settle a claim, sometimes before the value is capable of being assessed, to ensure that they obtain a fair settlement whilst mitigating the risk of a costs order against them which may reduce or completely wipe out any settlement.
How can our solicitors help?
As a result of these changes, you will need the best possible representation when undergoing litigation proceedings, to ensure you have the best possible chance of winning your case and avoiding any adverse cost orders. It is therefore essential to enlist the services of experienced and proficient solicitors who possess a comprehensive understanding of the new rules and their ramifications. By working with with top-tier representation, you can significantly boost your chances of succeeding with your case and avoiding any adverse costs.
Our experienced solicitors possess in-depth knowledge of the new rules and their implications, enabling them to develop effective strategies tailored to your specific circumstances. They will meticulously evaluate your case, gather compelling evidence, and present persuasive arguments in your favour. Additionally, our experienced lawyers can skilfully navigate the evolving legal landscape, adapting their approach to mitigate risks and maximise the potential for success.
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Categorised in: Dispute Resolution
This post was written by Tayntons