The government has published a consultation on proposals to introduce costs protection in defamation and privacy cases in the form of qualified one-way costs shifting (QOCS), to ensure people of ‘modest means’ are not put off suing.

QOCS was introduced for personal injury cases in April, on the recommendation of Lord Justice Jackson. The government initially rejected a similar solution for defamation and privacy cases but has now changed its mind following the recommendation of Lord Justice Leveson.

The government said the proposed regime is intended to ensure that access to justice in these cases is ’as much a reality’ for poorer litigants as for the wealthy.

It said poorer parties, whether claimants or defendants, should be able to litigate where necessary, without the fear of exposure to the substantial costs that they might be ordered to pay to the other side in these cases.

The paper says the purpose is ‘to ensure that meritorious cases are able to be brought or defended by the less wealthy, who should not be deterred from bringing or defending an appropriate claim through the fear of having to pay unaffordable legal costs to the other side if they lose.’

Costs protection will in principle be available to both claimants and defendants, subject to satisfying the means tests.

Unlike in personal injury cases, the government does not believe that it is right to provide full costs protection regardless of means to all claimants in defamation cases. Rather it considers that it is right that those who can afford to pay all or some of the costs in these cases should do so.

It proposes rules for three sets of claimants, based on their means. Those ‘of modest means’ should be entitled to cost protection in full, giving them a nil net liability.

 A ‘mid’ group of those with ‘some means’ who could pay something, but not the cost in full, would be entitled to costs protection in part - capped liability.

Those of ‘substantial means’ would get no costs protection because they would not face ‘severe financial hardship’ if they were ordered to pay either side’s costs.

It would be open for parties to agree the costs protection position, but if that could not be achieved the judge would decide, based on a statement of assets provided by the applicant.

Under the proposals, individual claimants who are not of ‘substantial means’ would be entitled to costs protection unless the court was satisfied that they would not suffer severe financial hardship.

Claimants who are not individuals, such as businesses or charities, and all defendants, could also apply for costs protection, which could be agreed between the parties or by the judge.

As with personal injury cases, it is proposed that costs protection be lost if there was fundamental dishonesty or the case was struck out.

Justice minister Helen Grant said: ‘Defamation and invasion of privacy can have a devastating effect on lives and it is crucial that people, whatever their means, can stand up for their rights in court even when they are facing a wealthy opponent who can afford to appoint a team of expensive lawyers.’

The proposed changes are intended to come into effect from April 2014, alongside reforms to no-win, no-fee agreements for defamation and privacy cases.

The consultation closes on 8 November: