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Is Qualified One Way Cost Shifting, (QOCS) the end to no win no fee cases?
Qualified One- Way Cost-Shifting (QOCS) has been heralded as the new gateway for access to justice. Since June 30th 2021 all personal injury actions (including medical negligence actions) within Sheriff Court and Court of Session actions will be subject to QOCS.
Until now anyone asking the Courts to award them compensation for an injury has run the risk that they would have to pay the other side’s legal fees if they did not win their case. The potential risk of tens of thousands of pounds will have put off many people from seeking compensation. QOCS means that now the playing field is levelled – i.e. the Pursuer no longer has the risk of meeting not only their own but the other party (Defender’s) costs if they don’t win the case.
There are caveats however, which Pursuers should be mindful of QOCS shouldn’t be viewed as the green light for pursuing claims, no matter their basis.
The Pursuer must at all times conduct themselves in an “appropriate manner” in order to avoid liability for the Defender’s expenses. In summary this means that the protection on costs will not apply if the litigant or their legal representative either:-
- acts fraudulently;
- behaves in a manifestly unreasonable manner; or
- otherwise abuses process
The new rules introduce four further requirements to be eligible for the protection QOCS, they are:
- the Pursuer must succeed in being awarded more than any formal offer of settlement made by the Defender;
- if a formal offer of settlement is made, the Pursuer must not unreasonably delay accepting it;
- the Pursuer must not abandon the action; and
- the Pursuer’s case must not have no real prospect of success.
There isn’t guidance on what amounts to “unreasonable delay” and each case will need to be judged on its own terms. There is however a cap on expenses recoverable: If a Pursuer fails to beat a Defender’s formal offer or is found to have unreasonably delayed in accepting it, then it will result in a liability not exceeding the expenses occurred by the successful party after the date of the tender. There is also a limit on the total sum payable not exceeding 75% of the damages obtained by the Pursuer, which should prevent the damages being wiped out by the Defender’s costs.
To find out more about the new rules introduced under the Act of Sederunt (Rules of Court of Session 1994, Sheriff Appeal Court Rules, Sheriff Court Rules Amendment) (Qualified One-Way Costs- Shifting) 2021 SSI 226 and how they may apply to your case contact Ishbel Nunn on 01224 332400.
