The QOCS don’t work
We successfully defended a claim under the Manual Handling Operations Regulations and Provision and Use of Work Equipment Regulations for a London Borough at trial today.
The claimant claimed she had not been given any training to perform the task of empting a small refuse bin in to a large wheelie bin, which we disputed but she accepted that there was nothing wrong with method she had in fact adopted to perform the task, which she said was “common sense” and agreed that no further training would have made any difference to the way she performed the task.
She further disputed that she was provided with rigger gloves but claimed she was instead provided with different gloves which nevertheless had a rubber grip and which she also accepted were appropriate for the task.
To top it all, her oral evidence was wholly inconsistent and contradicted almost everything in her statement of case and witness statement rendering her a wholly unreliable witness.
After the claimant’s evidence her counsel sought an adjournment when the claimant was invited to discontinue. The Judge duly dismissed the claim at the claimant’s request.
The claimant had been a hopeless witness but she had not been dishonest and so with no exception to QOCS, qualified one-way costs shifting applies.
How can it be right that a defendant, in this case a public authority, invests time and public money to defend a claim to trial just to see the claimant walk away, while the public authority is left out of pocket?
Qualified one way costs shifting is simply not fair. Claimants need to have some “skin in the game” so that they carry some of the risk of an adverse outcome and defendants who sucessfully defend cases ought, in all fairness, to be able to recover against a losing claimant.
One for the Civil Procedure Rule Committee to have another think about...
Barrister at Crown Office Chambers
6 年Steve, here's a topical report from the MOJ, apologies if another commenter has flagged it already: ?https://www.gov.uk/government/publications/post-implementation-review-of-part-2-of-laspo? It reports "Stakeholders generally stated that QOCS was working well, but there were issues around the use of ‘fundamental dishonesty’ by defendants and the late withdrawal of claims by claimants." and "the test of fundamental dishonesty for QOCS and anecdotal stakeholder feedback suggest there has been an overall decline in unmeritorious claims". I think overall the package of reforms - of which QOCS was a part - has reduced claims without merit going too far, the report is right. More stringent risk assessments are being applied to claims because there are no success fees from other claims to fund 'dice rolling' of weaker claims. I expect the legal professionals on the other side to your claim may think twice in future about the claims they take to trial, though that is no consolation for you and your clients. For me the key word is 'late withdrawal'; i think there is some gaming of the QOCS system with unmeritorious claims being issued with a view to achieving a low settlement with no downside risk, but where the insurer doesn't play that game, sometimes the withdrawal comes too late. To be fair, Claimants complain about indiscriminate deployment of FD arguments.
Costs Lawyer at Norton Rose Fulbright
6 年I agree with your comments. Chris Bowman is right it is swings and roundabouts for Defendants. I use to work for insurers who pushed more than anyone for the recovery of ATE premiums to be abolished. Be careful what you wish for!
Serious Injury Team Leader at Bike Assist Legal
6 年I agree with the 'skin in the game' point. Perhaps if C goes to Trial and losses they are liable for opposing Counsels fee only or maybe reasonable diabursements?
Associate Solicitor - Complex Claims
6 年Swings and roundabouts for defendants. They successfully lobbied for recoverable ATE premiums to be abolished and qwocs was the price. They shouldn’t bleat about it now.
Cost Consultant
6 年I've not seen any economic analysis to consider if parties are better off or not. The savings on success fees and ATEs could well benefit defendants with recovery traditionally only relevant in a smaller number of cases. Emphasis must be on defendants to seek to disapply QOCS wherever possible to dissuade claimants seeking to chance their arm. Irrespective of the impact on claimants and defendants it's certainly fundamentally impacted the ATE market. I for one am happy to not have to have Sarwar v Alam arguments routinely!