A reminder that QOCS does not prevent the making of costs orders against Claimants

Qualified one-way costs shifting (QOCS) was introduced in 2013 as a measure to counterbalance the end of the recovery of success fees and ATE premiums in personal injury claims.  Put simply, it protects personal injury Claimants from the risk of paying the Defendant’s costs in the event that a claim is unsuccessful. There are, of course, caveats to that protection and QOCS does not prevent the making of costs orders against Claimants, it simply restricts a Defendant’s ability to enforce any such orders.

The making of interlocutory orders for costs against Claimants with QOCS protection was considered in the recent case of Atmani & Ors v Royal Borough of Kensington & Chelsea & Ors [2022] EWHC 2618 (KB). The Defendant sought an order for their “costs in the case” having been the successful party in various applications at the CMC. The Claimants argued that QOCS prevented the Court from making such an order. Senior Master Fontain disagreed, concluding that  “Claimants subject to the QOCS regime are not protected from interlocutory costs orders, otherwise such Claimants would be free to make speculative or unmeritorious applications without fear of costs consequences. As RBKC correctly submit, CPR 44.14 makes it clear that the QOCs regime concerns enforcement of costs orders, which is not a relevant consideration in respect of this order.”

CPR 44.14 (as it currently stands) allows Defendants to enforce any costs orders only up to the amount ordered for damages and interest. Where there is no such order, they cannot recover. Where the Claimant’s damages are modest, the Defendant’s costs cannot exceed that figure, even if the Claimant has also recovered costs (Ho v Adelekun). This is due to change following a review by the CPRC with the amended rules allowing enforcement up to the amount ordered (including deemed orders) for damages, interest and costs. These changes are due to come in with the extended fixed costs rules next year.

If you have any questions regarding this summary, or QOCS in general, please contact Helen Spalding here.