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QOCS gets the John Grisham treatment

Personal injury practitioners should read and use Kerry Underwood's book on QOCS, or they may well lose out, advises Gordon Exall

14 April 2016

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The full title of this book is significant: Qualified One-Way Costs Shifting, Section 57 and Set-off. For those involved in personal injury litigation, these are likely to be key issues for the foreseeable future. They cannot be ignored. It should be clear, even without this review, that this is a book that needs to be at the desk of every personal injury litigator.

The surprising thing about qualified one-way costs shifting (QOCS) is that this is neither innovative nor new. Underwood points out that the Jackson report merely follows a model of costs used in 1531, which provided protection for 'poor persons'. The Jackson report recommended a similar model, but that it should be means tested; this element was rejected by the Rules Committee.

A gripping read?

Underwood clearly wants you to read the book all the way through - like a Grisham novel, only, of course, much more gripping. It covers:

  • Section 57 and the structure of costs;

  • The exceptions to QOCS (which are going to be a fertile battleground);

  • The statutory material; and

  • The law of set-off (of crucial importance in QOCS cases).

The book discourages passive reading. There are several exercises (which, fortunately, are immediately followed by the answers, with some clear, and often compelling, commentary).

For instance: 'One of the points being missed is the solicitor's risk of being left with a liability for post-part 36 disbursements that a client who has failed to beat a part 36 offer cannot, or will not, pay. This is bound to influence solicitor behaviour. There is no point in a client spending a substantial sum on after-the-event insurance to cover this part 36 risk unless they are likely to recover a sum that exceeds the part 36 offer by at least as much as the premium, in which case why take out the insurance at all?'

Fundamental dishonesty

It is the issue of fundamental dishonesty that is likely to exercise the courts, including the appellate courts, over the next few years. This is addressed by section 57 of the Criminal Justice and Courts Act 2015. There are two chapters that deal with this issue, the first in relation to section 57, the second specifically in relation to QOCS.

Again, this is essential reading. Underwood points out that a previously unlosable case on liability, such as acting for a passenger, can now be lost if the claimant is fundamentally dishonest.

The remedy is in the book, too, with a strongly worded client care letter, including a section that states, in bold: 'you will not exaggerate any part of your claim'. There is a lengthy and even more direct statement that the client signs in relation to the special damages schedule and the medical report.The role of witness evidence is going to be crucial in cases of fundamental dishonesty: Underwood provides some practical and hard-headed guidance in this section.

Part 36 offers

The book also considers the additional difficulties that are caused by part 36 for a claimant proceeding under QOCS. Underwood's belief is that 'the continued existence of the full force of part 36… in QOCS cases… makes QOCS almost pointless in most cases'.

Underwood's book cannot offer a solution to these issues (because there are none). However, this is an issue that has to be considered and addressed in every case, and the issues are best considered rather than ignored.Law of set-off

It may be a coincidence that the chapter on set-off is chapter 13. This is another problem area and one rife for satellite litigation. Can a defendant set off liability to a claimant's costs if the defendant obtains a costs order? (The answer is yes, probably.) This issue of law, which in the past could usually be ignored by personal injury practitioners, is now one that requires consideration.

Underwood may, or may
not, forgive me for reminding everyone that not so very long ago he was opining that the days of the law book were dead, replaced by the internet. This book (ironically) shows why he is wrong. With the onset of costs budgeting and the reduction in litigation costs, the need for straightforward, no nonsense, direct, and practical texts is greater. Time has always been money. Books like this make sure that your time is put to the best use.

Gordon Exall is a barrister practising from Zenith Chambers and Hardwicke @CivilLitTweet

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