QOCS protection is not absolute. While Qualified One-Way Costs Shifting generally protects claimants in personal injury claims from paying a defendant’s costs, there are important exceptions where that protection can be lost or limited.

Introduced in April 2013, the QOCS regime fundamentally altered how costs are recovered in claims involving damages for personal injuries. However, where certain conditions are met, such as findings of fundamental dishonesty or procedural abuse, the court may permit enforcement of a defendant’s costs, either in part or in full.

Understanding these exceptions is critical, as they can significantly alter a claimant’s exposure to paying costs.

 

The General Rule: QOCS Protection

Under the regime of qualified one-way costs shifting (QOCS), a claimant bringing a claim for damages for personal injuries will not usually be required to pay the defendant’s costs, even where the claim is unsuccessful.

In practice, this means that where a claim is successfully defended, the defendant will have a costs order in its favour, but enforcement is limited. Any recovery is typically restricted to the level of damages and interest awarded to the claimant.

This protection is designed to promote access to justice, but it is subject to clearly defined exceptions.

 

Fundamental Dishonesty

One of the most significant exceptions arises where the court finds that the claimant has been fundamentally dishonest.

Where such a finding is made:

• QOCS protection is lost entirely
• The defendant may enforce its costs without the usual limitations
• The claimant may be required to pay the defendant’s costs in full

This applies not only where the entire claim is dishonest, but also where dishonesty goes to a substantial part of the case, such as exaggerated loss of earnings or fabricated elements of the claim.

From a costs perspective, this represents one of the most serious risks within the QOCS regime.

 

Strike Out of the Claim

QOCS protection may also be disapplied where a claim is struck out in specific circumstances.

This includes situations where the claim is struck out on the basis that:

• It discloses no reasonable grounds
• It is an abuse of the court’s process
• The conduct of the claimant is likely to obstruct the just disposal of the proceedings

In such cases, the court may allow the defendant to enforce its costs order in full.

 

Failure to Beat a Part 36 Offer

QOCS does not prevent all forms of costs liability. A key exception arises in relation to a Part 36 offer.

Where a claimant fails to beat a defendant’s Part 36 offer, the defendant may seek to enforce its costs from the expiry of the relevant period. While QOCS still applies, the defendant may set off its costs order against any damages and interest awarded.

This can significantly reduce, or eliminate, the claimant’s recovery.

Although the claimant is not usually required to pay sums beyond the damages recovered, the practical effect can still be substantial.

 

Mixed Claims and Scope of QOCS

QOCS applies only to claims for damages for personal injuries. Where proceedings include additional claims (for example, non-personal injury elements), the court may need to determine the extent to which QOCS protection applies.

In some cases, the court may grant permission to enforce a defendant’s costs in respect of non-protected elements of the claim. This may require permission of the court, particularly where costs need to be apportioned.

The position can be complex, particularly in multi-faceted litigation.

 

Set-Off and Enforcement

Even where QOCS protection applies, defendants are not without remedy. The rules permit defendants to enforce costs orders by way of set-off against sums awarded to the claimant.

This means that:

• A claimant who recovers damages may still see those sums reduced
• A defendant’s costs can effectively be recovered indirectly
• The practical benefit of the claim may be diminished

Recent appellate consideration, including in the Court of Appeal, has clarified aspects of how set-off operates within the QOCS framework, reinforcing the importance of careful costs strategy.

 

Practical Costs Implications

From a costs perspective, the exceptions to QOCS protection introduce real and sometimes significant exposure.

Key considerations for practitioners include:

• The risk of allegations of fundamental dishonesty, particularly in higher-value claims
• The impact of failing to beat a Part 36 offer
• The importance of properly framing claims that include both personal injury and non-personal injury elements
• The potential for costs enforcement where claims are struck out

For claimants, the existence of QOCS protection should not be treated as a guarantee against adverse costs. For defendants, the exceptions provide meaningful opportunities to recover costs in appropriate cases.

 

Summarisation

QOCS protection plays a central role in modern personal injury litigation, but it is subject to important and sometimes overlooked exceptions. Findings of fundamental dishonesty, adverse Part 36 outcomes, and procedural issues such as strike out can all lead to enforcement of a defendant’s costs.

In practice, the key issue is not simply whether QOCS applies, but whether any of the exceptions may be engaged. These exceptions can have a significant impact on costs recovery, exposure, and overall litigation strategy.

 

Need Advice on QOCS and Costs Recovery?

As this article highlights, the exceptions to QOCS protection can materially affect both costs exposure and recovery. Issues such as fundamental dishonesty, Part 36 outcomes, and enforcement of costs orders often arise at the most critical stages of litigation.

At Greener Costs, we advise solicitors and litigators on the application of QOCS, including how exceptions are argued and how costs are treated on detailed assessment.

If you are dealing with a matter where QOCS protection may be in issue, or where a defendant’s costs are being pursued, we can assist.

Contact our team to discuss your matter:

• 📧 Email: info@greenercosts.co.uk
• 📞 Telephone: 01204 263047
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FAQ: Exceptions to QOCS Protection

When does QOCS protection not apply?

QOCS protection may be lost or limited in cases involving fundamental dishonesty, strike out, or certain costs consequences following a Part 36 offer.

What is fundamental dishonesty in QOCS?

It refers to dishonesty that goes to the root of the claim. If established, it allows the defendant to enforce its costs in full.

Can a defendant recover costs under QOCS?

Yes, but usually only by set-off against damages, unless an exception applies allowing full enforcement.

Does QOCS apply to all claims?

No. It applies primarily to claims for damages for personal injuries. Mixed claims may fall outside full protection