A Practical Guide to Qualified One Way Costs Shifting (QOCS)

Practice Guides — 2026-03-25

A comprehensive guide to QOCS for solicitors and costs practitioners. Covers when QOCS applies, both versions of the CPR 44.14 enforcement cap following the 6 April 2023 amendment, Part 36 interaction, fundamental dishonesty, mixed claims, discontinuance and practical tips for both claimants and defendants.

Qualified one way costs shifting - universally known as QOCS - is one of the most significant reforms to civil litigation costs in recent decades. Introduced as part of the Jackson Reforms in April 2013, QOCS fundamentally changed the costs landscape for personal injury claims by providing claimants with protection against adverse costs orders.

This guide explains how QOCS works, when it applies, and - critically for costs practitioners - the circumstances in which that protection can be lost. It draws on our experience handling costs disputes where QOCS is in play, including cases involving multiple claimants, interim payments and discontinuance.

One point matters before anything else. CPR 44.14, the rule that governs enforcement, was rewritten with effect from 6 April 2023, and the old version still governs claims issued before that date. This guide covers both versions and flags where they diverge.

What Is QOCS and Why Was It Introduced?

Before April 2013, personal injury claimants were protected against adverse costs orders by a combination of after-the-event (ATE) insurance premiums and success fees under conditional fee agreements (CFAs). These were recoverable from the losing defendant. The problem was that recoverable success fees and ATE premiums added enormously to the costs of litigation, and these additional costs were ultimately borne by defendants and their insurers.

Lord Justice Jackson's review of civil litigation costs recommended abolishing the recoverability of success fees and ATE premiums, and replacing them with QOCS. The principle is straightforward: in most personal injury cases, an unsuccessful claimant will not be required to pay the defendant's costs, regardless of the outcome.

QOCS is governed by CPR 44.13 to 44.17. It applies automatically - there is no need for a claimant to apply for it or to hold any particular type of funding arrangement.

When Does QOCS Apply?

QOCS applies to proceedings which include a claim for damages for personal injuries. The key provisions are found in CPR 44.13:

The proceedings must include a claim for damages

The claim must be for personal injuries (as defined in CPR 2.3(1), meaning "includes any disease and any impairment of a person's physical or mental condition")

The claim need only include a personal injury element - it does not need to be exclusively a personal injury claim

This third point is important. A claim that combines personal injury with property damage, credit hire, or other heads of loss will still attract QOCS protection for the entire claim. The courts have considered how this applies in practice in cases involving credit hire and mixed claims.

QOCS and Mixed Claims

Where a claim includes both personal injury and non-personal injury elements, the interaction between QOCS and costs orders requires careful analysis. The starting position under CPR 44.13 is that QOCS applies to the entire proceedings. However, the position becomes more nuanced where the claimant succeeds on the personal injury element but fails on the non-personal injury element, or vice versa.

The key question is whether the non-personal injury claim is brought within the same proceedings as the personal injury claim. If it is, QOCS protection extends to the entire proceedings. If separate proceedings are issued for the non-personal injury claim, QOCS will not apply to those separate proceedings.

For defendants' costs lawyers, this creates a tactical consideration: if a claimant brings a mixed claim and fails on the non-personal injury element, the defendant cannot simply set off costs against the non-personal injury element. The QOCS cap applies to the proceedings as a whole.

Two Versions of CPR 44.14: Why the Issue Date Matters

The Civil Procedure (Amendment) Rules 2023 (SI 2023/105) rewrote CPR 44.14 with effect from 6 April 2023. The new rule applies only where proceedings were issued on or after that date. A claim issued on 5 April 2023 stays under the old rule however long it runs, so the old regime will keep appearing in costs disputes for years yet.

The first question in any QOCS enforcement dispute is therefore the date on the claim form.

The QOCS Cap: How Costs Protection Works

Claims Issued Before 6 April 2023

Under the original rule 44.14(1), 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.

In plain terms: a defendant can enforce a costs order against the claimant, but only up to the value of any damages and interest the court has ordered. If the claimant recovers nothing, the defendant cannot enforce any costs order at all.

The word "orders" carries all the weight. In Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654 the Court of Appeal held that money payable under a settlement is not an order for damages. A Tomlin order, where the settlement terms sit in a schedule the court does not order, gives the defendant nothing to enforce against. Acceptance of a Part 36 offer is the same: the claim ends by agreement and no order for damages is ever made. So under the old rule a claimant who settles keeps complete costs protection, whatever costs orders the defendant has collected along the way.

The Supreme Court then closed the other route in Ho v Adelekun [2021] UKSC 43. A defendant cannot set off costs it is owed against costs it owes the claimant beyond the same cap, and where there is no order for damages the cap is nil. After Cartwright and Ho, a defendant's costs orders in most settled claims were worthless.

Claims Issued On or After 6 April 2023

The new rule 44.14(1) raises the enforcement ceiling. Orders for costs made against a claimant may now be enforced without the permission of the court up to 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.

The ceiling now includes settlements. An accepted Part 36 offer is an agreement to settle, so the settlement sum counts. So does money payable under a Tomlin order. Rule 44.14(2) brings deemed costs orders under rule 44.9 into the calculation, including the deemed costs order that arises on acceptance of a Part 36 offer. And the ceiling covers costs and interest ordered or agreed in the claimant's favour, so it is no longer limited to damages.

Two further sub-rules govern how enforcement works. Under rule 44.14(3), a costs order against a claimant may only be enforced after the proceedings have concluded and the costs have been assessed or agreed. Under rule 44.14(4), where enforcement is permitted against a costs order in the claimant's favour, rule 44.12 applies, so the defendant can set off what it is owed against what it owes.

For claims issued on or after 6 April 2023 this reverses both Cartwright and Ho. A claimant who settles no longer walks away from adverse costs orders, and set-off of costs against costs is available up to the new ceiling.

Set-off Against Damages

The most common scenario in which QOCS protection has practical consequences is set-off. Where a claimant succeeds at trial but has also had costs orders made against them during the proceedings, the defendant may set off those costs against the damages awarded.

For example, if a claimant is awarded damages of £50,000 but has costs orders against them totalling £15,000 from unsuccessful interim applications, the defendant can set off the £15,000, leaving the claimant with net damages of £35,000. Under the old rule the defendant can never recover more than the £50,000 in damages and interest, and any excess costs orders are unenforceable. Under the new rule the ceiling also takes in the claimant's costs and any settlement sums, and rule 44.14(3) holds enforcement back until the proceedings have concluded and the costs have been assessed or agreed.

QOCS and Part 36

The interaction between QOCS and Part 36 offers is one of the most litigated areas of costs law. CPR 44.14 caps enforcement of costs orders against a claimant, and the size of that cap depends on when the claim was issued. CPR 44.15 and 44.16 then set out specific exceptions where QOCS protection is lost entirely.

Defendant's Part 36 Offer

Where a claimant fails to beat a defendant's Part 36 offer at trial, the defendant is ordinarily entitled to costs from the expiry of the relevant period under CPR 36.17. In a QOCS case, those costs can be enforced by way of set-off against the claimant's damages. On a claim issued before 6 April 2023 the recovery is capped at the damages and interest awarded. On a later claim the cap is the higher aggregate ceiling, which includes the claimant's costs.

Late acceptance is where the two regimes diverge most sharply. When a claimant accepts a defendant's Part 36 offer after the relevant period has expired, the defendant is ordinarily entitled to its costs from expiry to acceptance. On a claim issued before 6 April 2023 that entitlement is usually worthless: acceptance produces no order for damages, so under Cartwright there is nothing to enforce against. On a claim issued on or after 6 April 2023 the settlement sum counts towards the ceiling, so the defendant can set its costs off against the sum it has agreed to pay.

Claimant's Part 36 Offer

A claimant's Part 36 offer does not affect QOCS protection. If the defendant fails to beat the claimant's Part 36 offer, the enhanced consequences under CPR 36.17(4) apply in addition to QOCS protection. The claimant enjoys both the costs protection of QOCS and the enhanced benefits of an unbeaten Part 36 offer.

When Is QOCS Protection Lost?

QOCS protection is not absolute. CPR 44.15 and 44.16 set out the circumstances in which the court may make an order for costs against a claimant that can be enforced to its full extent, without being subject to the QOCS cap. These exceptions were untouched by the 2023 amendment and apply in the same way under both regimes.

Fundamental Dishonesty (CPR 44.16)

The most significant exception is fundamental dishonesty. Under CPR 44.16(1), orders for costs made against the claimant may be enforced to their full extent where the claim is found on the balance of probabilities to be fundamentally dishonest.

The test for fundamental dishonesty requires more than mere exaggeration. The dishonesty must go to the root of the claim or a substantial part of it. A claimant who honestly pursues a genuine claim but exaggerates one element of quantum may not lose QOCS protection. A claimant who fabricates the accident, or invents injuries, or fundamentally misrepresents the circumstances, will.

The burden of proving fundamental dishonesty lies on the defendant, and the standard is the balance of probabilities. In practice, defendants who wish to rely on this exception should plead it specifically and adduce evidence in support.

Section 57 of the Criminal Justice and Courts Act 2015 also provides that where the court finds the claim to be fundamentally dishonest, it must dismiss the claim entirely (unless doing so would cause substantial injustice). This operates alongside CPR 44.16 to remove both the damages award and QOCS protection.

Proceedings Struck Out (CPR 44.15)

QOCS protection is also lost where the claim is struck out on the grounds that:

The claimant has disclosed no reasonable grounds for bringing the proceedings

The proceedings are an abuse of the court's process

The conduct of the claimant or their representative is likely to obstruct the just disposal of the proceedings

In the context of multi-party litigation involving discontinuance and strike-out, these provisions can create complex costs arguments about the extent to which QOCS protection survives.

Claims for the Benefit of Others (CPR 44.16(2))

Where a claim is made for the benefit of a person other than the claimant, the court may order costs against the claimant to be enforced to their full extent. This provision targets claims brought nominally by one party but really for the benefit of another, such as subrogated claims or claims brought by assignees.

QOCS and Discontinuance

The position on discontinuance and QOCS has been the subject of considerable judicial attention. Where a claimant discontinues proceedings, the default position under CPR 38.6 is that the claimant is liable for the defendant's costs from the date of service of the notice of discontinuance. The question is whether QOCS protection applies to limit enforcement of that costs liability.

The prevailing view is that QOCS protection survives discontinuance, because CPR 44.13 applies to "proceedings which include a claim for damages for personal injuries" and the nature of the proceedings does not change simply because they are discontinued. In practice a claimant who discontinues has usually recovered nothing, so under both regimes the enforcement ceiling is nil and the costs order cannot be enforced at all. On a claim issued on or after 6 April 2023, though, the ceiling includes any orders or agreements in the claimant's favour made before discontinuance, such as interim costs orders, and the defendant can enforce up to that amount.

There is an important exception. If the court finds that the discontinuance itself amounts to an abuse of process, it may make a costs order enforceable to its full extent under CPR 44.15. This might arise where a claimant discontinues to avoid a finding of fundamental dishonesty, or where the timing of the discontinuance suggests tactical manipulation.

QOCS and Interim Applications

Costs orders made on interim applications are subject to QOCS in the same way as final costs orders. If the claimant loses an interim application and the court orders the claimant to pay the defendant's costs, that costs order is subject to the QOCS cap. It can be enforced only to the extent of the enforcement ceiling: on older claims, the damages and interest ordered; on claims issued on or after 6 April 2023, the aggregate of damages, costs and interest ordered or agreed, including settlement sums. Rule 44.14(3) adds a timing constraint on the newer claims, since enforcement must wait until the proceedings have concluded and the costs have been assessed or agreed.

In practice, this means defendants in QOCS cases may accumulate costs orders against the claimant during the life of the case, but will only be able to enforce them at its end. On claims issued before 6 April 2023 this can create a perverse incentive for claimants to make speculative interim applications knowing that the costs consequences are limited. On later claims the incentive is weaker, because every adverse costs order eats into whatever the claimant eventually recovers, however the claim resolves.

QOCS and Detailed Assessment

QOCS applies to the costs of the detailed assessment proceedings themselves. Where a paying party (defendant) in a personal injury case brings a challenge to the receiving party's (claimant's) costs, any adverse costs order against the claimant arising from the assessment proceedings is subject to QOCS protection.

This has practical implications for costs budgeting disputes and challenges to the bill. On a claim issued before 6 April 2023, a defendant who incurs significant costs in challenging a bill may find that any costs order in its favour is unenforceable, because the cap is set by the damages ordered and, where the claim settled, no such order exists. On a claim issued on or after 6 April 2023 the claimant's assessed or agreed costs form part of the enforcement ceiling, and rule 44.14(4) applies rule 44.12, so the defendant can set off what it is owed against the bill before paying rather than chasing the claimant afterwards.

Practical Tips for Costs Lawyers

Acting for Claimants

Check the issue date first. A claim issued before 6 April 2023 keeps the old enforcement rule for good. On anything issued later, do not advise that settling shields the client from adverse costs orders. It no longer does.

Do not assume QOCS is bulletproof. If there is any risk of a finding of fundamental dishonesty, advise the client early. The consequences extend beyond costs - Section 57 requires dismissal of the entire claim.

Make Part 36 offers. QOCS provides a floor of protection, and an effective Part 36 offer provides a ceiling of enhanced benefits. Use both.

Be cautious with mixed claims. Ensure non-personal injury elements are included within the same proceedings to maximise QOCS protection.

Consider the position on discontinuance carefully. While QOCS protection usually survives, discontinuing to avoid a dishonesty finding may itself be treated as an abuse of process.

Acting for Defendants

Check the issue date first. On a pre-6 April 2023 claim, a costs order is usually worth only what set-off against ordered damages will yield. On a later claim, settlement sums and the claimant's costs are in play too, so late acceptance and Tomlin settlements no longer wipe out your costs entitlement.

Plead fundamental dishonesty early. If there are grounds, raise them in the defence. Late applications to amend to add a fundamental dishonesty allegation face an uphill battle.

Track interim costs orders. Even though they are subject to QOCS, they form the basis for set-off against any damages awarded and, on claims issued on or after 6 April 2023, against the claimant's costs and settlement sums as well. Keep a running total.

Challenge abuse of process. If the claim is struck out on abuse grounds, QOCS protection falls away under CPR 44.15. This can transform the costs position entirely.

Make effective Part 36 offers. A well-judged Part 36 offer maximises the defendant's ability to set off costs against the claimant's recovery.

Conclusion

QOCS has fundamentally altered the economics of personal injury litigation. For claimants, it provides essential protection that enables meritorious claims to be pursued without the fear of a crippling adverse costs order. For defendants and their insurers, it creates challenges that require careful tactical planning around Part 36 offers, interim applications, and the identification of potential fundamental dishonesty.

The 2023 rewrite of rule 44.14 has shifted the balance back towards defendants on claims issued on or after 6 April 2023, and both versions of the rule will be in daily use for years to come. For costs lawyers, the starting point of every QOCS dispute is now the date on the claim form. Understanding not just the rules but their practical application - including the interaction with Part 36, the nuances of mixed claims, and the circumstances in which protection is lost - is essential to effective costs advocacy.

If you need advice on a costs dispute involving QOCS, whether acting for a claimant or defendant, please contact us to discuss how we can help.

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