QOCS (qualified one way costs shifting) has not made out of court settlements more likely and encourages dishonesty where claims proceed to trial, the Law Society has claimed.
QOCS is where a successful defendant cannot recover their costs from the losing claimant, except in certain specific circumstances. It is offset by the rule that successful claimants cannot recover their ATE (after-the-event) insurance premiums from a losing defendant. Both rules were introduced by LASPO (the Legal Aid, Sentencing and Punishment of Offenders) Act 2012.
Responding to a government call for evidence on the impact of LASPO Part 2 last week, the Society said it had not seen any evidence of more cases being settled since LASPO, particularly in high value claims.
Where claims do proceed to trial, ‘the circumstances in which QOCS can be disapplied creates an incentive for defendants to make dishonest allegations, especially if no cost penalties are imposed where the allegations are unfounded,’ the society says.
‘This abuse of process not only intimidates claimants into dropping cases, but it also leads to satellite litigation. Where these allegations are made orally at trial, the claimant is also placed at a disadvantage. As there is no clear penalty for making such allegations falsely, this practice is likely to continue.’
However, the Society said it supported extending QOCS from personal injury claims only to mixed claims, for example, ‘where a remedy may be for personal injury damages in tort as well as breaches of human rights, actions against the police and housing disrepair cases.’ It also recommended extending QOCS to non-clinical professional negligence, where the high cost of insurance can make it not worth bringing a case, and to private nuisance proceedings to bring the UK into compliance with the Aarhus Convention.
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