The government has clarified certain aspects of its plans for qualified one-way costs shifting (QOCS), which will apply for personal injury claims from April 2013. QOCS means that personal injury claimants will be awarded their costs if the claim is successful but will not generally have to pay the defendant’s costs if the claim fails.
The government confirmed in an announcement on Tuesday (10 July) that QOCS protection will be lost if a claimant has failed to beat a defendant’s Part 36 offer. In other words, a claimant who refuses a defendant’s Part 36 offer but fails to do better at trial will be at risk for the defendant’s costs (but the costs liability will be capped at the level of damages recovered by the claimant). The key message for defendants is therefore to make a well-judged Part 36 offer at an early stage, in order to retain some costs protection.
QOCS protection will also be lost if a claim is found to be fraudulent, or is struck out as disclosing no reasonable cause of action or as an abuse of process. There will not however be a financial test for eligibility; QOCS will apply to all personal injury claimants, whatever their means.