Qualified One-Way Costs Shifting (QOCS) plays an important role in litigation involving personal injury and clinical negligence. The regime limits the circumstances in which defendants can enforce orders for costs against unsuccessful claimants.

Understanding how the QOCS regime operates is essential for parties involved in clinical negligence litigation. While the rules generally protect claimants from adverse costs orders, there are circumstances where that protection may be lost.

Here, the team at Greener discusses ‘Does QOCS apply to clinical negligence claims?’, how the regime operates in practice, and how recent developments have affected the enforcement of costs orders.

Quick Answer

Yes. Qualified One-Way Costs Shifting (QOCS) generally applies to clinical negligence claims because they fall within the definition of personal injury claims under CPR 44.13–44.17. This means defendants cannot usually enforce costs orders against unsuccessful claimants, although there are exceptions such as fundamental dishonesty or strike-out of the claim.

 

What Is Qualified One-Way Costs Shifting (QOCS)?

Qualified One-Way Costs Shifting is a costs protection regime introduced under the Civil Procedure Rules, primarily CPR 44.13 to CPR 44.17.

The regime applies to most personal injury cases and was introduced as part of the Jackson reforms to civil litigation.

Under the QOCS regime, a claimant bringing a personal injury claim will generally not be required to pay the defendant’s legal costs if the claim fails. Courts may still make orders for costs in favour of a defendant, but those orders cannot usually be enforced against the claimant.

The purpose of the regime is to ensure that individuals can bring legitimate personal injury claims without facing the risk of substantial adverse costs if the claim is unsuccessful.

 

Does QOCS Apply to Clinical Negligence Claims?

Yes. The QOCS regime generally applies to clinical negligence claims because they fall within the broader category of personal injury claims.

Clinical negligence proceedings arise where a claimant alleges that a healthcare provider breached their duty of care and caused injury. Because these claims involve personal injury, they are typically covered by the QOCS regime.

As a result, even where a defendant obtains orders for costs against the claimant, enforcement will normally be limited under the QOCS rules.

However, this protection is not absolute, and there are several circumstances in which defendants may be permitted to enforce costs orders.

 

When Can QOCS Protection Be Lost?

Although QOCS provides significant protection to claimants, the Civil Procedure Rules contain several important exceptions.

Strike-Out of the Claim

If a claim is struck out by the court, QOCS protection may be removed.

Strike-out may occur where a claim discloses no reasonable grounds for bringing the proceedings, where the proceedings amount to an abuse of process, or where there has been a serious failure to comply with court rules.

In such circumstances, the defendant may seek permission of the court to enforce orders for costs against the claimant.

Fundamental Dishonesty

Another key exception arises where the court finds that the claimant has been fundamentally dishonest.

If fundamental dishonesty is established, the defendant may be able to enforce costs orders in full. This means that the claimant may become liable for the defendant’s legal costs even where those costs exceed the amount of damages that would otherwise have been awarded.

Abuse of Process

The court may also remove QOCS protection where proceedings amount to an abuse of process.

This ensures that the regime cannot be used to shield claimants who pursue claims improperly or in bad faith.

 

The Impact of Part 36 Offers

Part 36 offers can have significant costs consequences in personal injury and clinical negligence claims.

A Part 36 offer is a formal settlement offer made under the Civil Procedure Rules. If a claimant fails to obtain a judgment more advantageous than the defendant’s Part 36 offer, the court may make orders for costs in favour of the defendant.

Under the QOCS regime, those costs orders are normally limited to the aggregate amount in money terms of the claimant’s damages and interest.

Part 36, therefore, remains an important tactical tool in clinical negligence litigation.

 

The Supreme Court Decision in Ho v Adelekun

The operation of the QOCS regime was considered by the Supreme Court in the case of Ho v Adelekun [2021] UKSC 43.

The court examined whether defendants could enforce costs orders through set-off against costs orders obtained by claimants.

The Supreme Court concluded that defendants could not circumvent the QOCS rules in this way. Enforcement of costs orders was restricted to the damages and interest awarded in favour of the claimant.

The decision confirmed the protective nature of the QOCS regime and clarified the limits of costs enforcement.

 

Changes to the QOCS Regime in April 2023

Amendments to the Civil Procedure Rules came into force in April 2023, which modified how costs may be enforced in QOCS cases.

The reforms allow defendants to enforce costs orders not only against damages but also against certain costs orders made in favour of the claimant.

As a result, the aggregate amount in money terms against which enforcement may occur can now include both damages and certain costs recoveries obtained by the claimant.

These changes were introduced following concerns raised after Ho v Adelekun and were intended to restore balance to the costs regime.

 

The Role of ATE Insurance

Despite the protection offered by QOCS, many claimants still obtain After the Event (ATE) insurance.

ATE insurance provides additional protection where QOCS protection may be lost. For example, if a claim is struck out or if the court finds fundamental dishonesty, the claimant may still be exposed to adverse costs orders.

ATE insurance, therefore, remains an important feature of the funding landscape for clinical negligence claims.

 

Settlement Agreements and Tomlin Orders

Many clinical negligence claims resolve before trial.

Where parties reach a settlement, the agreement may be formalised through a Tomlin order. This type of order records the terms of settlement between the parties, including provisions relating to damages and costs.

Although QOCS may still apply, the terms of the settlement agreement will often determine how costs are dealt with between the parties.

 

Key Takeaways

The QOCS regime generally applies to clinical negligence claims because they fall within the category of personal injury claims.

The regime protects claimants from enforcement of adverse costs orders if their claim fails, although courts may still make orders for costs. Defendants may enforce costs orders where the claim is struck out, where the claimant is fundamentally dishonest, or where the proceedings amount to an abuse of process. Additionally, Part 36 offers can significantly affect the costs position in clinical negligence litigation.

Changes introduced in April 2023 expanded the circumstances in which defendants may enforce costs orders by allowing set-off against a wider range of recoveries.

 

Frequently Asked Questions

Does QOCS apply to clinical negligence claims?

Yes. Clinical negligence claims fall within the definition of personal injury claims under the Civil Procedure Rules, meaning the QOCS regime generally applies.

Can defendants recover costs under QOCS?

In most cases, defendants cannot enforce costs orders against an unsuccessful claimant. However, enforcement may be permitted where the claim is struck out, involves fundamental dishonesty, or amounts to an abuse of process.

What changed in the QOCS rules in April 2023?

The amendments allow defendants to enforce costs orders against a broader pool of recoveries, including certain costs orders obtained by the claimant as well as damages and interest.

 

Contact Greener Costs

If you require advice on costs issues arising in clinical negligence litigation or other personal injury claims, the team at Greener Costs can support.

Greener Costs provides specialist costs consultancy services, including advice on costs budgeting, Part 36 strategy, and the operation of the QOCS regime.

To discuss your matter with our team, please contact Greener Costs via info@greenercosts.co.uk or by filling out our contact form below and we will be happy to assist at the earliest convenience.