QOCS explained: qualified one-way costs shifting in personal injury claims

QOCS is set out in CPR 44.13 to 44.17. It applies to proceedings that include a claim for damages for personal injuries, claims under the Fatal Accidents Act 1976, and claims arising under the Law Reform (Miscellaneous Provisions) Act 1934 for the benefit of an estate. Clinical negligence claims involving injury fall within it.

QOCS was introduced from 1 April 2013 as part of reforms that removed recoverability of success fees and ATE premiums. The aim was to offer claimants protection similar to the cover ATE once provided, without the cost being passed to defendants.

Under QOCS, a defendant’s costs order against a claimant can be enforced without permission only to the extent that it does not exceed the aggregate amount of damages, interest and costs orders or agreements in the claimant’s favour. Since 6 April 2023, the rules have made clear that enforcement can be against costs awarded to the claimant, not only damages and interest.

That change matters in claims where a claimant succeeds overall but loses on an interlocutory issue or fails to beat a defendant’s Part 36 offer. The defendant’s costs may now be set off against the claimant’s costs recovery, reducing what the claimant’s solicitors receive.

Orders can be enforced in full without permission where the claim has been struck out because the claimant disclosed no reasonable grounds, the claim was an abuse of process, or the claimant’s conduct was likely to obstruct the just disposal of proceedings.

With permission, orders can be enforced in full where the claim is found on the balance of probabilities to be fundamentally dishonest. The finding usually arises at trial, though it can be made in other circumstances. There are also exceptions for mixed claims, for example where a claim includes substantial non-personal injury elements.

For defendants, QOCS reduces the practical value of an adverse costs order against an unsuccessful claimant, which makes early Part 36 offers and well-founded allegations of dishonesty more significant. For claimant firms, the 2023 changes mean offers must be assessed with the risk of set-off against recovered costs in mind.

In detailed assessment, QOCS can influence negotiations where there are cross-orders. Our Costs Lawyers often prepare a net position that shows how any set-off works, so both sides can see the realistic outcome before incurring further expense.