QOCS Changes!
The Civil Procedure (Amendment) Rules 2023 which come into effect on 6 April 2023 make radical changes to the provisions of CPR relating to the set-off of costs, and QOCS, and completely upsets those cases which paying parties complained had effectively diluted the effectiveness of the QOCS regime, notably Cartwright v Venduct and Ho v Adelekun.
The amended 44.14 becomes:
(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, or agreements to pay or settle a claim for, damages, costs and interest made in favour of the claimant.
(2) For the purposes of this Section, orders for costs includes orders for costs deemed to have been made (either against the claimant or in favour of the claimant) as set out in rule 44.9.
(3) 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.
(4) Where enforcement is permitted against any order for costs made in favour of the claimant, rule 44.12 applies.
(5) 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.
In summary, a paying party will now be able to enforce its costs against damages, interest, and the Claimant’s costs without permission from the Court after the conclusion of proceedings, including in the context of Pt 36 and Tomlin Orders.
It is unarguable that the current position favours Claimant’s so there might be temptation to issue proceedings before 6 April 2023, but Defendant’s will be closely monitoring compliance with Pre – Action Protocols and will round on any case where proceedings might have been issued precipitously. The advice therefore is to ensure that Defendant’s can have no valid complaints about the issuing of proceedings.
Mark Balme – Senior Costs Consultant
09.02.23