Page 64 - Solving Housing Disputes

3.17 All of this is creating great uncertainty and challenges the viability of practices
carrying out disrepair claims for tenants. Our Working Party thinks one way to
provide certainty is to introduce Qualified One-Way Cost Shifting (QOCS) to
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disrepair claims. QOCS were introduced into personal injuries after the
Jackson Reforms, and provide cost protection against personal injury claimants
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in the event they are unsuccessful. District Judges on our Working Party
expressed the view that in the overwhelming majority of disrepair cases which
come before them a claimant is successful. (Their concern was about the cases
which they suspect are not reaching them, on account of difficulties accessing
advice and the courts faced by people with meritorious disrepair claims.)

3.18 QOCS have the potential to be a powerful tool for access to justice in disrepair
claims, though their introduction might require a robust early triage stage by
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judges or suitably qualified court staff, to assess unmeritorious claims. We
recommend the Ministry of Justice consult on introducing Qualified One-
Way Costs Shifting for housing disrepair claims.

Online possession project

3.19 The online possession project is due to commence in 2020 and while there is
little detail of what it might entail, the expressed intention is to “improve,

159 Sir Rupert thought QOCS had merit where there were “parties who are generally in an asymmetric
relationship with their opponents”, which included disrepair, Lord Justice Jackson, Review of Civil
Litigation Costs: Final Report, chapter 9, para 5.11 available at https://www.judiciary.uk/wp-
content/uploads/JCO/Documents/Reports/jackson-final-report-140110.pdf This sentiment was recently
reiterated by the Law Society, The Law Society’s Response to the Ministry of Justice Post-
Implementation review of Part 2 LASPO Act (Law Society, 2018) available at
https://www.lawsociety.org.uk/policy-campaigns/consultation-responses/moj-post-implementation-
review-part-2-laspo/

160 The procedural matters relating to QOCS are set out at CPR 44.13 - 44.17 and provide cost protection
by controlling or limiting the enforcement of an adverse costs order against an unsuccessful claimant.
Lord Briggs, in the Civil Court Structure Review, characterised QOCS as a “powerful promoter of access
to justice”, Briggs LJ, Civil Courts Structure Review: Final Report (Judiciary of England and Wales,
July 2016) para 6.29 available at https://www.judiciary.uk/wp-content/uploads/2016/07/civil-courts-
structure-review-final-report-jul-16-final-1.pdf

161 There have been concerns that QOCS drive unmeritorious claims on the basis that lawyers, and
claimants can push claims, immune from costs order unless fraud is demonstrated, submission to the
LASPO review by NHS Resolution, see M Fouzder, ‘LASPO ban is ‘driving referral fees underground’
Law Gazette, 1 October 2018).

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