Qualified one-way costs shifting

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?

4 thoughts on “Qualified one-way costs shifting

  1. You’re comparing apples with oranges. Like him or loathe him Colum takes on very large cases where the costs will always be very large (profit costs of at least £500k for the ones i’ve seen.). Losing one of those seriously impacts the firms’ cash-flow and budgets and would put many firms in jeopardy of closing down. If you win one in two then you need a 100% sf to stay afloat.

    David is talking about the sort of claims one sees in Moj now- many claimants take a punt because many big insurers just cannot investigate every claim within the timescales. These are modest claims.

    Speculative / fraudulent claims don’t work when very large amounts are claimed because it then becomes costs effective for the insurer to properly investigate.

    So, they are both right!

  2. …however, he is wrong to say that he doesn’t cherry pick. We all do because we all turn down cases where there is less than a 50% chancemof winning. If you don’t turn those down then you will always make a loss!

  3. Whilst it is always nice to be quoted, the point of my comment is that we rarely know in clinical negligence cases until a significant amount of money has been spent. In Johnson the Defendant denied experimental surgery and faking his medical notes. The Defendant was a well respected Surgeon. The Claimant had no evidence to support her case. We as a firm were asked to gamble huge amounts of money. If we lose the financial consequences are devastating. Could you lose millions and still stand? We would need a lot of success fees to cover those losses. What has that to do with one way cost shifting?

  4. I am a retired worker, who just really wanted an apology from work for treating me so badly, causing me to have three nervous breakdowns. I went to see a solicitor who said I had an excellent case and would work on NO WIN NO FEE basis and would take out insurance just in case I lost. Seven years of delay, we thought we had won, they thought we had won (they asked for a re-trial) and I failed to prove my case. I am now suicidal as I have to pay their fees of £140k plus some of my own £40k. All my life I have saved hard and they are taking it away from me. I am 62.

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