THE NEW RULES ON QOCS AND COSTS 1: IMPLEMENTATION
The Civil Procedure (Amendment) Rules 2023 make major changes to the rules relating to the set off of costs and QOCS, reversing the decision of the Supreme Court in Ho -v- Adelkun. Here I want to look at the rule relating to implementation of the new provisions.
The changes are explained in the explanatory notes to the rules.
“(g)amending rule 44.14 (effect of qualified one-way costs shifting)—
(i)to allow the court in cases falling within the scope of the qualified one-way costs regime to order that the parties’ costs liabilities be set-off against each other, Ho v Adelekun UKSC 43 having previously found that this rule, properly construed, did not allow the court to do so; and
(ii)to include within this rule, as well as deemed orders, agreements to pay damages or costs, so to allow the off-setting of costs orders made in favour of a defendant and ensure that offers made under Part 36, and, for example, settlements concluded by way of a Tomlin Order, come within the rule;”
The Statutory Instrument is clear in itself that the change to the rules is not retrospective. The new provisions apply to proceedings issued after the 6th April 2023. Note the key date is issue, and not service, of proceedings,
“(3) The amendments made by rule 24 of these Rules apply only to claims where proceedings are issued on or after 6th April 2023.”