Insurance law firm Kennedys believes the vision of the qualified one-way costs shifting (QOCS) regime is not being realised, and that the proposed changes to the rules are in danger of not levelling the field for claimants and defendants as intended.
In response to a government consultation on changes to the Civil Procedure Rules, Kennedys said the QOCS amendments that were being put forward risk not achieving the ‘level the playing field’ aim, adding that consequences of the regime include unmeritorious claims and high costs in defending them.
“Kennedys agrees with the intention behind the consultation but has a number of concerns around the wording of the proposed amendments, including the assumption that the claimant’s entitlement to costs will always exceed that of the defendant,” stated the law firm in a release.
It was held in a previous Supreme Court case that costs orders made in a claimant’s favour should not be taken into account when determining the limit up to which a defendant may enforce an order for costs in its favour.
Now, it is being proposed that a claimant’s costs entitlement be considered as part of the overall fund against which set-off can be applied. Additionally, it is being proposed that costs orders be extended to deemed orders.
In Kennedys’ response, it noted that a lack of retrospective effect would be a missed opportunity to significantly reduce the amount of dispute resolution pending the amendments’ introduction.
“In our view,” said Kennedys costs manager Daniel Carnall, “the introduction of QOCS was always likely to lead to a degree of uncertainty. The developments and interpretation of the rules has led to undesired outcomes, and an increase in satellite litigation.
“Ultimately, it is accepted that in order to ensure access to justice, claimants should be in a position to present claims without undue financial duress. However, checks and balances are required which, absent amendment, the current rules do not bring to bear.”
