QOCS
–
Managing Partner
Ralli Solicitors LLP

• White Paper – will only apply to PI
•
Costs shifting
–
Loser Pays - D or C
• One Way Costs Shifting – D always pays
• “Qualified”
One Way Costs shifting
– D generally pays unless exceptions apply then C pays.
•
QOCS encourages claims repudiation
• QOCS Access to Justice reduced
• Government income reduced

• If C’s case is fraudulent
• If C’s case is frivolous
• If C’s case is unreasonable
• On financial means grounds – where C is very wealthy
• If D is uninsured – how can C know this?
• Speculative claims – losing C pays minimum payment towards
D’s costs

• Rules require full costs advice to C
– scare Claimant’s with no ATE
• AJAG Consumer Survey – 77% would not claim if risk of paying costs
• Without proper ATE cover 25% drop in legitimate cases (206,000)
• MINELAS – C to reveal income, liabilities and assets – D will enquire

• ATE companies said non recoverability of additional liabilities will kill ATE business
• Pernicious exceptions will encourage
ATE to live on?
• RTA Portal cases – no ATE?
• Non portal RTA – need ATE
•
EL / PL
– less predictable – need ATE
•
Lower policy volume = higher premiums paid by C
• ATE policy may neutralise D’s costs threats to C
– but maybe not

• Sibthorpe & Morris v London Borough of
Southwark [2011] ECWA Civ 25
• Code requires best cost advice to C
• Indemnity to be disclosed N251
•
C needs to know Sols bank will meet cheque
– full disclosure of Sol’s private borrowing to C
•
SI will not work in tricky volume matters
•
A non
– starter except for the odd case?

• Fraud – satellite litigation
•
Frivolous = satellite litigation
• Unreasonable = satellite litigation
• Wealthy C definition? = satellite litigation
•
Interlocutory Orders exceptions apply? = satellite litigation
•
Part 36 = satellite litigation
• Proportionality = satellite litigation increases costs
•
D uninsured = satellite litigation
• ATE policy will probably not negate SL
• LI and D sols think they are untouchable
•
Pre issue conduct enquiries from D to soften up C
• Subjective tests before the courts
•
Tsunami of interlocutory applications

• QOCS create asymmetric positions for C & D
•
ATE is needed with QOCS by C for certainty
• CMC’s / sols require ATE commissions NB will ATE cover be needed in RTA Stage 3 portals?
• Deferred ATE disbursement paid by client from compensation
• ATE premium to be self insured in abandoned and lost cases
• ATE Co’s will sieve unmeritorious/ fraudulent cases
• ATE Co’s need to means test C
– wealthy
• ATE policies to be re-written
• C’s disbursements to be covered
•
Will
“Shameless” clients need ATE? yes
• BTE checks still needed – uneconomic / regulation?

• QOCS - predicted fraud increase ?
•
If no ATE
– psychological intimidation of C by D to withdraw or under settle at every stage
•
If no ATE
– no staged case review
• ATE premiums not subject to 25% cap
• Clients may pay out over 25% of compensation in costs
•
Barristers will do CFA’s with zero success fees for volume
•
MINELAS could be means tested by D or ATE provider – soften up C
•
Sign up agents needed to secure cheque payment authorities at outset.
• No ATE massive reduction in actionable cases
• Minimum contribution to D’s costs – how much?

• Join AJAG to influence reform for future Claimant’s
• Contribute financially to AJAG c/o
Ralli Solicitors LLP
• Effective lobbying buys more time
• Lobby and meet your MP – all of your staff
• Provide anecdotal evidence of potential injustice
• Read the recent AJAG response to the White Paper www.ajag.co.uk

• Contact tom.lavelle@ajag.co.uk
– join AJAG
• Email martin.coyne@ralli.co.uk
with
AJAG contributions and pledges
• Contribute financially to AJAG c/o
Ralli Solicitors LLP - money held in clients account .
• 1 year at least of future lobbying
MP’s and the MoJ
• Make a difference