Qualified One Way Cost Shifting (QOCS) – What is it?
Recently the Scottish Parliament passed a Bill allowing for the introduction of QOCS. When introduced it is meant to even up the playing field as far as legal costs are concerned, particularly in personal injury actions. Basically someone pursuing a personal injury claim will not have to pay the legal costs of the Defender even if the Pursuer loses.
Why is that?
In most personal injury cases the Defender will be insured and will therefore be able to rely on their insurers to pay.
Is the Pursuer always protected?
No, they are not always protected, and there are three exceptions to this:-
- If the Pursuer makes a fraudulent claim;
- If the Pursuer behaves very unreasonably in the claim; and
- If the Pursuer otherwise conducts his claim in a manner that the Court considers amounts to an abuse of the Court process.
What will QOCS mean?
We will need to see how QOCS works in practice to get a full idea, but the following possibilities spring to mind:-
- (a) Pursuers may be encouraged to take riskier claims to Court in the knowledge they have nothing to lose;
- (b) Defenders and their insurers may be encouraged to settle claims earlier in the knowledge that even if they win, they will not get their costs back. Accordingly at least in some claims it may be cheaper just to settle than to defend; and
- (c) It is likely to have an impact on legal insurance. Particularly after the event (ATE) insurance will change. This type of insurance covers pursuers for the risk of adverse costs, but this risk will if not entirely disappear be much less and so that will call for a different type of ATE insurance.
Pursuer’s own costs
It is important to know that QOCS only covers adverse costs and not the costs of the Pursuer’s solicitor. The claimant still has to agree with his own solicitor how these costs will be met. These can be dealt with on a no-win, no-fee basisor possibly a different type of legal insurance.
Legal Aid
QOCS along with other measures is likely to have a big impact on Legal Aid in personal injury cases. It is pretty likely that, at least for the more straightforward personal injury claims, Legal Aid will no longer be available, but for more complicated cases which are very expensive to run, such as medical negligence claims, then Legal Aid funding may still be available.
When does it start?
The Bill was passed on 1st May 2018, but detailed Court Rules have to be drafted to bring QOCS into force. These have not yet been drafted. The Scottish Civil Justice Council (SCJC) who are responsible for drafting the Court Rules say the Rules are not ready yet and are unlikely to be ready for some time. Accordingly that means QOCS is unlikely to start until sometime next year, however we will post regular updates on any changes.
How can we help you with QOCS?
If you have any new personal injury claims that you think should be made, please contact us and we will be happy to discuss all options with you to fund the claim including QOCS.
