'QOCS quirks and the quixotic quid pro quo’: Qualified One-Way Costs Shifting and Access to Justice

Bates, John (2015) 'QOCS quirks and the quixotic quid pro quo’: Qualified One-Way Costs Shifting and Access to Justice. In: Socio-Legal Studies Association Conference 2015, 29 March 2015 - 2 April 2015, University of Warwick. (Unpublished)

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Abstract

In the Final Report of the Review of Civil Litigation Costs, Lord Justice Jackson recommended the introduction of a regime of Qualified One-Way Costs Shifting (‘QOCS’) in personal injury cases. This recommendation was part of the inter-locking package of reforms to the funding and recovery of costs in civil disputes. QOCS was seen as part of the solution to the problem of removing the right to recover ‘additional liabilities’ (success fees and premiums for After The Event insurance) in cases conducted on a conditional fee basis, whilst preserving access to justice in personal injury cases. The Government adopted many of Lord Justice Jackson’s recommendations, and a system of QOCS was introduced in April 2013, as part of the widespread changes to civil litigation costs and funding in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The QOCS regime is now 2 years old. We are starting to see litigation reach the courts which test the parameters of the rules.

Is QOCS operating as expected, to do justice in the ‘paradigm instance of litigation in which the parties are in an asymmetric relationship’? Is there a true comparison with the ‘legal aid shield’ provided by the Legal Aid system of the past? Are there unwanted side-effects of a system in which a claimant can now pursue a claim in the expectation that he will not face an adverse costs order in the event of failure at trial? Are the boundaries of the QOCS protection clearly delineated to strike the right balance between preserving access to justice in a litigation environment free of CFA success fees and ATE insurance premiums? How does QOCS interact with the existing (and new) Part 36 system for offers to settle? What does the future hold for QOCS? This paper aims to explore some of these topical issues.

Item Type: Conference or Workshop Item (Paper)
Subjects: M100 Law by area
M200 Law by Topic
Department: Faculties > Business and Law > School of Law
Related URLs:
Depositing User: John Bates
Date Deposited: 11 Feb 2016 11:22
Last Modified: 11 Feb 2016 11:22
URI: http://nrl.northumbria.ac.uk/id/eprint/25965

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