Qualified One Way Costs Shifting was introduced as part of the civil procedure reforms in 2013. It is known, not necessarily with affection, as QOCS. The idea came from the Jackson reforms. It was effectively a trade-off. Insurers said that they would prefer to waive any claim for costs in return for not having to pay ever increasing After the Event Insurance Premiums. The scope of QOCS is limited to personal injury claims. The rules are found in CPR 44.13 and are from clear.
This is illustrated in the recent case of Sutcliffe v Ali and Aviva discussed by barrister Gordon Exall in his Civil Litigation Brief –
What happens where a defendant counterclaims in a personal injury claim? If the counterclaim fails does the defendant have the benefit of QOCS? The answer, according to HHJ Gargan in the Middlesborough County Court was a firm ‘no’.
‘In my view the defendant is not to be viewed as an unsuccessful claimant in the proceedings as a whole but rather as the unsuccessful defendant in the claim – albeit that he was also the unsuccessful claimant in his own personal injury claim.’
This clearly makes sense. The whole idea of QOCS was the protect access to justice for victims of accidents, not to allow defendants to avoid costs liabilities.
While we are on the subject of QOCS, what is the position where there is a claim with a personal injury element but is primarily about something else? For example, you could have a s11 Housing Disrepair Claim which includes a claim for injury to health. If the fail claims, does QOCS apply. This is what happened in Commissioner for the Police of the Metropolis v Brown  EWHC 2046. This was a claim against the Police for a Data Breach. It included a claim for damages for Personal Injury in the form a depression. This aspect of the claim failed. At first instant HHJ Luba found that she had QOCS protection because of the presence of the personal injury claim. The Defendant appealed and succeeded. The claim included a claim other than a claim for personal injuries. This came within the scope of CPR 44.16 (2) (b) which meant in effect that she did not have the benefit of QOCS as of right and the matter came within the court’s discretion.