Another recent Qualified One Way Costs Shifting (QOCS) matter has been addressed, this time by the High Court in Searson & Anor v Chief Constable of Nottingham Constabulary [2025] EWHC 1982 (KB), where the Court upheld only 50% QOCS protection.

The claimants, a married couple described as of “good character”, were detained for longer than permitted under the Police and Criminal Evidence Act 1984 (PACE). Under PACE, a detainee must be reviewed by an independent officer within six hours of initial detention, and the detainee or their solicitor must be consulted as part of that review.

In this case, the reviewing officer postponed both detainees’ reviews due to workload. The first appellant’s review was lawfully conducted at 4:01 p.m., but the second appellant’s review at 4:15 p.m. occurred without any consultation with her or her solicitor, while an interview was ongoing.

The High Court accepted that there had been a breach of PACE obligations, but rather than awarding full protection, it limited QOCS protection to 50%. This ruling reflects the courts’ willingness to apply partial disqualification of QOCS, tailoring costs consequences where fairness and proportionality demand it.

At trial, the claimants argued the missed consultation was a material infringement of statutory safeguards and warranted full immunity from costs; the defendant force accepted a procedural lapse but maintained its practical effect was limited. The judge assessed the extent to which the irregularity had driven additional contested litigation and tailored the protection accordingly, emphasising proportionality.

The QOCS Regime and Its Purpose

The qualified one way costs framework underpins modern civil litigation in personal injury matters. The QOCS regime was introduced to shield claimants from adverse costs orders, particularly where litigation might otherwise be deterred due to financial risk. This protection ensures that the risk of paying the defendant’s costs does not undermine access to justice.

That protection is not absolute. Courts retain discretion to consider whether QOCS should be applied differently where conduct or procedural errors create unnecessary work or expense. Partial disqualification allows the court to maintain fairness without entirely removing protection, applying a proportionate approach based on the circumstances.

While most commonly applied in a personal injury claim, the principles of QOCS are increasingly relevant in cases where procedural breaches drive additional costs. This includes careful assessment of any orders for damages and how they interact with potential cost recovery.

Judicial Reasoning and Partial Disqualification

The High Court’s reasoning was rooted in proportionality. QOCS protection is not an all-or-nothing exercise; judges may tailor protection when procedural breaches or additional work arise.

Courts often assess where additional cost was incurred and whether it was causally linked to the breach. Remedies may include reducing recoverable costs by percentage, disallowing discrete items, or limiting the award to stages unaffected by procedural failings. Practitioners need to quantify the impact on amount in money terms, demonstrating which elements of work were necessary and which arose from the breach.

Partial disqualification ensures that a claimant is not unfairly penalised while preventing disproportionate recovery. Courts will consider the effect on any damages and interest, including sums of interest awarded in favour of the claimant, to ensure recovery does not exceed the losses incurred.

Broader Context: Case Law and Policy Development

The Searson ruling sits within a broader appellate landscape. The decision draws on authority from the Court of Appeal, including decisions reported in EWCA Civ, and engages with Ho v Adelekun 2021 UKSC 43, which affirmed important protections for claimants while indicating limits on judicial innovation.

This framework interacts with elements such as success fees and after-the-event insurance, which are excluded from recovery where disqualification occurs. Practitioners must also be mindful that QOCS does not protect claimants from enforcement of a valid order for costs where breaches justify reduction.

Judges will often consider whether costs protection should be adjusted to reflect partial success, for instance, where awards exceed the aggregate of recoverable sums or where enforcement could otherwise diminish a claimant’s entitlement. This careful balancing maintains proportionality between parties and aligns recovery with actual litigation costs.

Practical Implications for Practitioners

Partial disqualification has significant practical implications. Even in a personal injury claim, early risk assessment and budgeting are essential. Costs teams should prepare dual scenarios reflecting full QOCS protection and potential partial disqualification outcomes.

Settlement dynamics are particularly sensitive. A Part 36 offer can materially influence costs exposure, and advisers must consider whether accepting or rejecting an offer affects the level of protection. Where litigation produces additional work due to breaches, courts may reduce costs recovery in proportion to the unnecessary steps incurred.

Practitioners must also pay attention to costs orders in favour of defendants or claimants, tracking the interaction with any aggregate amount in money recoverable. Accurate record-keeping of disbursements, expert reports, and counsel involvement ensures that claims are defensible at assessment.

Looking Ahead

The evolution of QOCS protection suggests that partial disqualification will continue to be a tool for judges seeking proportionality. Future involvement of the Court of Appeal and Supreme Court will clarify boundaries, particularly regarding procedural breaches and their effect on orders for damages and related costs.

Litigators and costs draftsmen must remain vigilant: even meritorious claims can face partial exposure if procedural compliance is not observed. The regime’s flexibility allows courts to tailor outcomes, preserving fairness while still offering meaningful protection.

How Greener Costs Can Help

At Greener Costs, we are experienced in advising on disqualification of QOCS and related enforcement matters. Our team can:

• Assess whether a claim is vulnerable to partial or full removal of QOCS protection.
• Prepare detailed bills and submissions demonstrating proportionality and fairness.
• Advise on strategy where Part 36 offers, procedural breaches, or mixed outcomes may affect enforceability.
• Defend or challenge costs orders in favour of either party, ensuring compliance with Civil Procedure Rules and relevant authorities.

We combine technical expertise with practical drafting and negotiation to protect your client’s position. Contact Greener Costs today to discuss how we can help you manage costs effectively and achieve the best outcome in your claims.