QOCS Changes In April 2023: The Practical And Tactical Implications For Claimants And Their Solicitors

• Law Firm: Gatehouse Chambers
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury, Professional Negligence
• Author: Mr Colm Nugent and Martyn Griffiths
• Published date: 27 March 2023

In what is becoming something of a pattern, the Rules committee have come along to clear up the anomaly resulting from the decisions in the Appellate courts, this time in Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654; [2018] 1 WLR 6137 and Ho v Adelekun [2021] UKSC 43; [2021] 1 WLR 5132.

As all PI litigation lawyers know, Cartright precluded enforcement in cases where settlement had been agreed, limiting enforcement to those cases in which there had been a court order concerning the award of damages.Although this had the undoubted effect of encouraging ADR and settlement, it also had the perverse incentive of encouraging defendants to press to trial, while simultaneously robbing Part 36 offers of much of their teeth.

The Adelekun decision precluded the offset of costs against costs.

Therefore, in an effort to address these anomalies, April 2023 will usher in significant changes to CPR 44.14.

The effect of the changes will permit defendants to enforce costs orders made in their favour against costs orders made in favour of claimants.

Defendants will also be able to enforce costs orders in the overwhelming majority of cases in which the claim is concluded by way of acceptance of Part 36 offers or Tomlin Orders.

The Current Rule

Until 5^th April 2023, CPR 44.14 reads as follows:

"Effect of qualified one-way costs shifting

44.14

(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.

(2) Orders for costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.

(3) An order for costs which is enforced only to the extent permitted by paragraph (1) shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record.

From 6^th April 2023, The Civil Procedure (Amendment) Rules 2023, will change the Rule as follows (the changes are underlined for ease of reference):

Effect of qualified one-way costs shifting

44.14

(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any...