The Civil Procedure (Amendment) Rules 2023 statutory instrument, which will apply to claims issued after the 6^th April 2023, will have a major impact on the concept of Qualified One-Way Costs Shifting (“QOCS”).

For reference, CPR part 44.14 is currently:

 (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 damages and interest made in favour of the claimant.

 (2) 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.

 (3) 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.

The amendment of Part 44 is as follows:

(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, 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.”; and 

(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.

Currently, the costs orders that can be enforced by the defendant are capped 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” only after the conclusion of proceedings.

As of the 6^th April 2023, Defendants will be able to set off costs against orders, deemed orders, damages agreements and claimant costs. It also will not be subject to the same time restrictions.

This certainly represents a dramatic shake-up of the current costs regime, reversing the law following the decisions of Ho v Adelekun [2021] UKSC 43 and Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654.

Any potential claimants should therefore consider issuing proceedings in advance of 6th April 2023 to retain the current level of costs protection.