It is hard to argue against government plans to bring in costs protection in defamation cases.
With the recoverability of success fees and after-the-event insurance premiums stripped away for other areas of civil litigation, their long-term retention in defamation was unlikely. But qualified one-way costs shifting may be better news for defendants than claimants – particularly where an impecunious claimant sues a big publisher. Defendants will no longer be on the hook for claimant lawyers’ success fees, or those whopping ATE premiums.
Where QOCS applies, defendants will be unable to recover costs from a losing claimant. But they will benefit from a more ‘weaponised’ part 36; it will be much harder for the ordinary individual claimant to reject a low offer, when doing so could potentially have a dramatic effect on costs thereafter.
The same is true for small publishers, who may find it hard to reject an unattractive deal offered by a wealthy claimant. By rejecting the part 36 offer, they immediately put themselves at risk of paying the claimant’s expensive legal fees from the point of the offer onwards (post-Jackson of course, legal costs must be ‘proportionate’ – whatever that means).
Ministers do not see pressure to accept offers as a bad thing, however. Earlier settlement is the aim, though of course that does not necessarily make those settlements fair.