QOCS is a complex topic, and so the following is merely a summary of the key elements. For the majority of personal injury claims after 1 April 2013, QOCS applies. To understand QOCS, you need to appreciate what the position was before the introduction QOCS.
Pre-QOCS, in most personal injury claims, the Claimant’s claim would be supported by an insurance policy. Pre-QOCS, the purpose of the insurance policy was to protect the Claimant from the other side’s costs in the event that the claim was lost. If the claim was won – which was the majority of occasions – then the Defendant had to pay the Claimant’s compensation, and both parties’ legal costs and the Claimant’s insurance costs i.e. the Defendant would have a considerable financial burden to pay. The insurance policies were usually expensive.
The claims landscape changed on 1 April 2013. Generally, from this date, the compensation awarded for pain, suffering and loss of amenity was increased by 10%. At the same time, the costs that a Claimant solicitor could recover from the Defendant was substantially reduced. The increase in pain, suffering and loss of amenity compensation was increased so that essentially the Claimant’s solicitors could take a success fee from the Claimant’s past losses. The general idea is that a Claimant was in the same position as if the accident happened before 1 April 2013.
In addition (post-QOCS) if the Claimant loses the claim, then the Claimant doesn’t need to pay the Defendant’s legal costs as long as the Claimant’s claim was not fundamentally dishonest, nor struck out by the court. This means that after 1 April 2013 there is no need for costly insurance to support a claim. Today, if a Claimant fails to beat a Part 36 offer at trial, then they would have to pay a proportion of the Defendant’s costs up to the value of their Part 36 offer. In short, therefore, the introduction of QOCS was designed to save insurance companies money.
