From the beginning commentators have warned that with QOCS, the devil is in the detail. Some believe the idea is so flawed that a workable solution cannot be found whilst others foresee the start of a new round of costs wars as the courts struggle to deal with real situations that policymakers may fail to legislate for. So, there is great interest in anything the MOJ has to say about exactly how QOCS will be implemented. This is what we think we know following a statement from the MOJ:
Part 36 offers extinguish the protection from adverse costs albeit the clients’ exposure in this regard is limited to the level of damages recovered
… Will there be a need for insurance then once an offer is made and will there be insurance products available to respond? Does this apply however small the offer?
No means testing to qualify for QOCS
… But some claimants may still be liable for a minimum contribution to the defendant’s costs.
QOCS applies to defendant appeals
… We do not know if it will apply to claimant appeals.
SO, WHAT EXACTLY DO WE KNOW?
In a nutshell, we only know a little bit about something the profession needs to know a lot more about, and soon. Even what we do know leads to more questions.
The CJC are being asked to report back to the MOJ with certain recommendations on how QOCS should operate and hopefully then we’ll find out the details. Even if we do get the answers though, it is hard to see how the system will work in practice.
WHAT IS QOCS?
Under the new regime, clinical negligence claimants are expected to benefit from protection from adverse costs should they lose their case. Successful defendants will no longer be able to recover their defence costs from the losing claimant, producing what is a called a one-way costs shifting system.
The concept is designed to circumvent the need for the claimants to buy ATE insurance for adverse costs which the Government believes is costing the NHS too much.
Like all things though, it can never be as simple as that. It was recognised that there has to be exceptions where the claimants should lose the protection in certain circumstances (or perhaps even simply not be eligible for the protection in the first place). For instance, most people would agree that claimants who are judged to have behaved unreasonably should not retain the protection. Hence the introduction of Qualified One-way Cost Shifting.
The new regime is set to come into force in April 2013 according to the Government’s timetable for implementation.