Personal Injury Solicitors

In litigation, the usual practice is that the losing party is responsible for covering the costs of the winning party. In 2013, Qualified One-Way Costs Shifting (QOCS) was introduced to limit the claimant's liability for the defendant's costs in personal injury claims.

Most personal injury claims operate under Conditional Fee Agreements (CFAs), commonly known as "no win, no fee" agreements. QOCS meant that if a claimant won, the defendant would pay their costs, but if the defendant won, they would not recover their costs. In most cases, the court would not enforce an order for costs against the claimant unless the proceedings were struck out, the claim or claimant was fundamentally dishonest, or the claim involved a financial benefit claim for someone else.

Recently, the Ministry of Justice (MoJ) amended section II of the Civil Procedure Rules (CPR) 44. This amendment allows costs orders made in favour of a defendant to be offset against the agreed compensation for damages or costs. The amendment came into effect on 6 April 2023.

The MoJ argues that this amendment ensures that QOCS does not undermine the effectiveness of part 36 offers. A part 36 offer is a settlement offer, and if a party rejects a reasonable offer and fails to beat it at trial, they are liable to pay the other party's costs from the date of the offer's expiry.

In practice, this change significantly strengthens defendants' positions. If a claimant rejects a defendant's part 36 offer and loses at trial, the claimant may have to pay the defendant's legal costs, potentially eroding the final damages awarded. This creates a higher risk for claimants and encourages settlement rather than the risk of losing at trial. Consequently, after the event insurance premiums for claimants may increase. In anticipation of the amendment, there was a rise in the number of claims filed at Court before 6 April 2023 to avoid its impact, possibly contradicting the CPR's objective of swift and cost-efficient case resolution.

Fortunately, clients at Duncan Lewis Solicitors are unaffected, as our after the event insurer, ARAG, confirmed they will provide cover for any adverse costs. Furthermore, they will not increase the price of after the event insurance for policies issued after 6 April 2023.

About the author: Alisha Kwokori is a dedicated trainee solicitor specialising in the clinical negligence and personal injury department at Duncan Lewis Solicitors.

Alisha's journey with the firm began in May 2021, when she joined as a paralegal. Impressed by her exceptional skills and commitment, the firm offered her a training contract in July 2023.

Alisha manages a diverse caseload encompassing personal injury and clinical negligence claims. Her expertise spans a wide range of cases, including medical negligence claims, employer-related claims, occupiers' liability claims, and road traffic accidents.

Contact via email at AlishaK@Duncanlewis.com or via telephone on 020 3114 1189.

Alisha works under director Rebecca Thomas, a highly acclaimed and recommended lawyer recognised by Legal 500 for her expertise in handling severe and intricate clinical negligence and personal injury cases. With a wealth of experience, Rebecca has successfully represented clients in a wide range of complex claims, including birth injuries, brain injuries, surgical injuries, and orthopaedic injuries arising from medical negligence or delays in diagnosis. Her exceptional skills also extend to ophthalmic cases, where she has achieved remarkable results in representing clients in retinal detachment and laser surgery claims. Rebecca's dedication and proficiency make her a sought-after advocate for those seeking justice and compensation in challenging legal matters.