In November 2024 the government issued a call for evidence Costs protection for discrimination claims: Call for Evidence (gov.uk). This is to help it decide whether costs protection should be extended to (non-employment) discrimination claims in the civil courts.
In the employment tribunal, each party will usually bear its own costs. However for claims in the County Court, eg against a service provider, at least two parliamentary committees have recommended that Qualified One-Way Costs shifting (QOCS) – which already applies to personal injury claims – should be extended to discrimination claims: Enforcement of Equality Act: other proposals>Qualified one-way cost shifting (QOCS).
QOCS, if eventually introduced, should mean that even if the claim goes outside the Small Claims Track, a claimant who loses only has to pay the winning party’s costs in very limited circumstances. It is thus less risky to make a claim.
The costs of the claimant’s own lawyers can potentially be dealt with by a “no win, no fee’ conditional fee agreement. The claimant’s risk of having to pay the other side’s legal costs might be dealt with by ATE insurance, but the premium for this is not recoverable from the other side if the claim succeeds.
In 2020 there was an unsuccessful judicial review application on QOCS, R (Leighton) v The Lord Chancellor (links below). However, the court decision left open that a future judicial review – after the Ministry of Justice had had more time to review the position – might be successful.
News links
On the 2020 Leighton decision:
- Disabled campaigners ‘one step closer to justice’, despite court setback (disabilitynewsservice.com), Feb 2020
- Claimant fails in judicial review challenge over Qualified One-Way Costs-Shifting and discrimination claims (localgovernmentlawyer.co.uk), Feb 2020
- QOCS challenge fails (archive of frylaw.co.uk).
