Does QOCS Apply to Clinical Negligence?
Reasons to choose Wilson Browne
QOCS stands for qualified one way costs shifting, and it applies to clinical negligence claims.
This is important, as we’ll explain, as it means that if you’re a claimant, QOCS protects you from having to meet the defendant’s costs in your case.
What is QOCS?
Qualified one way costs shifting came into force in 2013 as part of Lord Justice Jackson’s recommendations for changing the rules of civil procedures.
QOCS applies to claimants claiming for personal injuries.
The basic principle of QOCS is:
- All defendants will generally have to pay the costs of successful claimants
- But they will not recover their own costs if they successfully defend a claim.
This has the effect of protecting the claimant against having to pay the defendant’s costs if their claim is unsuccessful.
This change to personal injury claims is part of the new Civil Procedure Rules.
When Does QOCS Apply?
QOCS applies to all personal injury claims that commence after 1 April 2013, including clinical negligence claims.
It also applies to appeals related to personal injury claims. QOCS may also apply to claims made before 1 April 2013, where there the claimant has no conditional fee agreement (CFA) or after the event (ATE) insurance.
QOCS is not means-tested, and applies to all personal injury claims regardless of the claimant’s wealth.
Can you Lose QOCS Protection in Your Clinical Negligence Claim?
As a claimant, you can lose the protection of QOCS if:
- Your claim is found to be fundamentally dishonest on the balance of probabilities
- Your claim is struck out due to there being no reasonable grounds for bringing proceedings, or there has been an abuse or process, or conduct likely to obstruct the proceedings
- You fail to beat a defendant’s Part 36 offer to settle.
Part 36 is a provision in the Civil Procedure Rules that encourages parties to settle disputes without going to trial. Under this provision, claimants and defendants can let the other side know what they would be willing to accept or offer to resolve the dispute.
If a defendant makes a well-judged part 36 offer, the claimant will be at risk if they refuse it but fail to do better at trial, as they might then have to pay the defendant’ costs.
What are the Implications for Defendants in Clinical Negligence Claims?
QOCS in clinical negligence claims mean that defendants will not be able to recover their own costs if they are successful in defending the claim.
This may act as a further incentive for them to make a Part 36 offer to the claimant to avoid going to trial.