The defendant costs specialists

Qualified one-way costs shifting

By on Jun 13, 2011 | 4 comments

The inconsistent arguments being put forward by the anti-Jackson lobby continue unabated.

Access to Justice Group co-ordinator Andrew Dismore was recently reported as saying:

“The government must think again and not give in to the special pleading of the fat cat multinational insurance companies, who are the sole beneficiaries of their plans. They will save millions of pounds at the expense of ordinary people who have been hurt on the roads or at work. The government’s plans are Draconian and will end access to justice for the less well off.”

Colum Smith, the solicitor who acted for the claimant in the recent high-profile £6m damages claim for plastic surgery injuries, was quoted in the New Law Journal as saying his firm would not have been able to act if success fees were no longer recoverable and limited to 25% of damages:

“If we lost the case, we would have lost too much money. I make a living doing high risk cases. I don’t cherry pick.”

The line of reasoning being taken here is that without recoverable success fees solicitors will be unwilling to take on more risky claims.

A crucial part of the Jackson package is the proposal to introduce qualified one-way costs shifting (QOCS). Generally, successful defendants would no longer be able to recover their costs from the unsuccessful claimant.

So what does David Hartley, Director of ATE services at Abbey Legal Protection, predict QOCS will mean? He was quoted in Costs Lawyer magazine as saying QOCS would lead to “a massive market in speculative and fraudulent claims”.

If these twin predictions are correct, post-Jackson we can expect claimant solicitors to be less willing to run genuine cases, because of the risk of losing, but more willing to take on speculative and fraudulent claims, regardless of the risk of losing.

Or perhaps not.

Which is it to be? More or less litigation?