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Jackson - The Main Problem with Qualified One Way Costs Shifting

So there I was watching Dr Dolittle with my children (not my cup of tea but better than sitting though 5 Peppa Pig episodes again) when on came the two headed lama thingeymajig called - pushme-pullyu. I was watching Rex Harrison trying to establish which end was the front and suddenly realised what the problem was with one way costs shifting (I know I am sad but it is a terrible film after all).

Slipping and tripping accidents are not affected and nor are accidents at work. Which party is the claimant and which one is the defendant is obvious to everyone.

The problem is, over 50% of claims are road traffic accidents and in road accidents, identifying the claimant and defendant is not so easy (can you see where I am going yet?).

Let's take an accident at a junction where one car pulls out in front of another. The one that pulls out is at fault, right? Well, not always - what if the approaching vehicle is indicating (and there are witnesses). Who is at fault then? A court would most likely award a split of liability - perhaps 60/40 in favour of the approaching vehicle. So..... if both parties are partly to blame for the accident, who is the defendant? Well, the simple answer - and one the courts use - is that the claimant is the one to sue first, meaning the one who fails to sue as quickly and has to counterclaim is the defendant.

Why does this matter? Well, Jackson suggests the answer to all of our problems is Qualified One Way Costs Shfiting - where the claimant can receive costs when they win but will not be subject to any costs if they lose (and so there is no need for After the Event Insurance). If either party could be a claimant as both are partly responsible for the accident, surely there is going to be a race to be the claimant to ensure they face no risk of costs and can recover their costs? What about the one that sues second - they are considered to be the defendant and so they will have to pay costs but not receive any if they win. Madness.

It simply doesn't work. Nor does a Lama with a head at each end - which is why you don't see them in the zoo. 

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