Qualified One-way Costs Shifting (QOCS) was introduced in April 2013 as part of Jackson reforms and is designed to protect an unsuccessful personal injury claimant from the risk of paying adverse costs. It should not operate if the claimant had a funding arrangement in place before April 2013 and it does not apply if the claim is not one for damages for personal injury. In Wagenaar v Weekend Travel in 2015 the Court of Appeal clarified that the protection afforded by QOCS was not applicable as between the main defendant and a part 20 defendant, even though the underlying accident involved personal injury. The decision on 26 February 2018 in Corstorphine v Liverpool City Council is an important re-examination of this area.
“setting the discount rate is more than a technical decision: it involves balancing the interests of the claimants with the defendants and also balancing the social costs”
Today the Justice Select Committee published its analysis of the draft discount rate legislation. We set out our initial thinking on the report below.
The Committee had been asked to report on this by the end of November, following the Government publishing the legislation in early September.
What happens next is not totally clear. The Government has already indicated that it will respond to the report within two months. On that basis, its plan should be clear by the end of January.
We fully expect the Government to press on with the proposed legislation but to take some note of the Committee’s recommendations about research and clarity on the necessary balance to be struck here between claimants, defendants & indemnifiers and society generally. But it seems to us that a good deal of those issues have been already addressed, for the most part, in the materials published by the Ministry following its consultation.
The tone of the Committee’s report today may be cautious, but from remarks by Ministers in the consultation material and in evidence to the Committee, the Government clearly intends to proceed as promptly as it can. If it is able to respond to this report as planned and to hold to its sense of urgency then we would expect the proposed legislation to be introduced in the New Year and before the Easter recess.
This is a hugely controversial area and it is realistic to expect the Bill to be subject to robust, and perhaps hostile, scrutiny in Parliament. It could still even be the subject of yet another judicial review; which would bring a very real risk of delay if it were to happen.
We shall provide further information as this issue develops.
The basis of QOCS is that the protection it affords against adverse costs applies to unsuccessful claims for personal injuries. These are conventionally argued in negligence against the defendant whose conduct caused the accident e.g. the negligent driver or employer. But should a statutory claim against an organisation which was not the tortfeasor be regarded as a claim for damages for personal injuries protected by QOCS?