No Qualified One-way Costs Shifting protection for counterclaiming defendant

Qualified One-way Costs Shifting (QOCS) protection applies to claimants in proceedings which include a claim for damages for personal injuries. While there is no argument that the term ‘claimant’ can mean a person bringing a counterclaim, how the court should interpret the term ‘proceedings’ for the purposes of CPR rule 44 is open to debate.

Indeed, this question has been subject to two contrary authorities at Circuit Judge Level.

In Ketchion v McEwan (26 June 2018), HHJ Freedman found that the term ‘proceedings’ must be given a wide meaning with the result that QOCS protection is extended to the costs of both the main action and the counterclaim. The natural result of that decision was that the unsuccessful defendant could avoid costs orders arising from both the claim and the counterclaim

Taking a contrary view, HHJ Venn in Andrew Waring v Mark McDonell (6 November 2018) interpreted ‘proceedings’ more narrowly as meaning the claim or the counterclaim, thereby treating the claim and the counterclaim as separate proceedings; the defendant would therefore have QOCS protection in respect of the counterclaim, but not the claimant’s successful claim

The decision in Waring has now been supported by HHJ Gargan in Jim Sutcliffe v Aftab Ali (15 January 2021). The Judge found that treating the claim and the counterclaim as separate proceedings better reflected the underlying principles behind the QOCS reforms, as to do otherwise would encourage defendants to bring weak or tenuous counterclaims to provide a defence to any costs claim by a successful claimant.

Robert Patterson is an Associate in our Costs and Litigation Funding team. If you have any questions please contact him on 0113 3363337 or at

This article was featured in our March 2021 newsletter, see the full newsletter here.

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