The Ministry of Justice is considering extending costs protection to discrimination cases, amid concerns that genuine claimants are being priced out of bringing cases.

The government has been considering changing the costs arrangements for these claims since being taken to the High Court by human rights campaigners. The request for a judicial review into the then-lord chancellor’s decision not to extend costs protection to discrimination claims was ultimately dismissed.

But the debate about whether the costs rules prohibit discrimination claims has not gone away. Specifically the question of whether qualified one-way costs shifting – available only for personal injury claims – could be extended. This would mean that even if a claimant was unsuccessful in their claim, they would not normally have to pay the defendant’s costs. QOCS in personal injury is not subject to means assessment.

The MoJ has now opened a call for evidence to hear views on the current arrangements for bringing discrimination claims and whether they should have costs protection. The consultation runs until 19 February.

Since the LASPO Act in 2013, most discrimination cases fell out of the scope of civil legal aid, with these claims relying instead on securing after-the-event insurance. But the MoJ says anecdotal evidence suggests that it is difficult to obtain cover for these cases.

Currently, if someone loses a discrimination case, they could be required to pay not only their own costs but those of the other side, and campaigners say many disabled people cannot afford to take this risk.

In R (Leighton) v Lord Chancellor, the High Court dismissed the claim in 2020 for judicial review brought by disability campaigner Esther Leighton, who was represented by London firm Deighton Pierce Glynn. The court recognised the barriers faced in bringing cases but ruled that the government needed more time to decide whether to extend QOCS. The judge did not accept that the current arrangements breached Leighton’s right of access to a court and unlawfully discriminated against her.

Following the decision, Leighton said: ‘Thousands of disabled people are unable to access basic services on a daily basis and businesses don’t care because they know their discriminatory practices won’t be legally challenged.

‘Whilst enforcing the Equality Act would be the best way to protect people from discrimination, introducing qualified one-way cost shifting would be a huge step in the right direction.’

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