“Qualified one-way costs shifting” ("QOCS") was introduced for personal injury claims from 1 April 2013. It means that defendants will generally be ordered to pay the costs of successful claimants but, subject to certain exceptions, will not be able to recover their own costs if they win. CPR r44.13 states that QOCS applies "to proceedings which include a claim for damages…for personal injuries".
In this case, the claimants suffered personal injuries when the car they were in was involved in an accident. The driver was uninsured and the claimants claimed against both the driver and the Motor Insurers' Bureau ("the MIB"). The MIB argued that it was not obliged to pay because of an exception where a claimant knew, or ought to have known, that the vehicle was being used without insurance. Much of the case turns on whether, as a matter of fact, the claimants ought to have known that the driver was uninsured. Lewis J concluded that a finding that they ought to have known by the court below should be set aside and the matter re-heard.
An appeal had also been made against the lower court's finding that QOCS did not apply here. In Howe v the MIB, it was held that QOCS did not apply because it is an essential feature of damages that there is a "wrong" and there had been no breach of duty by the MIB. The claimants argued that Howe could be distinguished, on the basis that here a claim was brought against both the driver and the MIB and so included a claim for personal injuries (against the driver). They also argued that in any event, the dishonesty exception for the QOCS regime should not apply where there has been no dishonesty in relation to the personal injury claim itself. The judge agreed that this was an important issue, but declined to reach a conclusion, on the basis that the costs order would in any event now be set aside.