Will we see QOCS expanded to new areas?

A Civil Justice Council report published last week considered whether qualified one-way costs shifting should be extended to two areas: for claims against the police, and for ‘follow on’ personal injury claims against solicitors who have negligently handled personal injury cases.

Take the first of these, claims against the police. There are many excellent and important reasons why QOCS must be extended to this area. 

But it is about as likely to happen as England winning the 2018 World Cup.

The stark imbalance between claimant and defendant in these claims – despite their importance both to individual victims and to society at large – is alarming.

As I have blogged before, many meritorious cases are not being brought because the potential monetary damages are too low to justify the extremely high after-the-event insurance premiums in this field.

As the CJC says in its report, there are strong – if not compelling – arguments of principle for introducing QOCS for claims against the police, based on access to justice and the asymmetry of the relationship between the parties.

But the move would be deeply unpopular with police authorities, and would no doubt vastly increase the number of claims brought against them – incurring public expense.

It would also run the risk of police being exposed to ‘have a go’ litigation – a risk that government would simply not want to take.

What about the second area, claims against solicitors who have negligently handled personal injury cases? Surely government wouldn’t be shedding any tears for PI lawyers, if it became easier to sue them?

Again, I cannot see QOCS being introduced here. There is already a nascent market for suing lawyers who may have undersettled PI claims. But law firms are managing to run these on a no-win, no-fee basis, and they do not appear to suffer the same barriers as police claims.

I think government would be highly reluctant to fuel a secondary market in these claims – particularly given that they are marketed directly to the public. Extending QOCS to this area would surely be a gift to the claims management sector, and would simply lead to more text and telephone marketing that the public is already sick of.

The CJC was initially going to examine the potential impact of extending QOCS in a third area – private nuisance claims for environmental harm or damage. This was originally part of the CJC’s remit, but government has taken over on it and issued a consultation on the issue, which closed in December.

Part of the impetus for change here came from Europe, and the need for the government to comply with EU law in ensuring that the cost of bringing environmental claims is not ‘prohibitively expensive’.

Presumably, QOCS in environmental cases will now be placed on the pile of issues where no more progress can be made, until we have more certainty over how Brexit will pan out.

One imagines that pile will be kissing the ceiling already, and costs protection in environmental claims will be squashed down somewhere towards the bottom.

One final area had been earmarked for QOCS – defamation. But following a proposal in 2013 to extend QOCS to this area, it has all gone rather quiet – the Ministry of Justice says it is still ‘considering’ the issue. 

So all in all, will we be seeing QOCS extended into any new areas, any time soon? No, we won’t.

Rachel Rothwell is editor of Litigation Funding magazine