Since the Jackson reforms, over 3 years ago, Qualified One-way Costs Shifting (QOCS) has been in force. The point of QOCS is that, apart from a few exceptions, Claimants if successful are able to recover costs from the Defendant, however if the Defendant successfully defends the claim they will not be entitled to recover their costs. For a detailed look at the principles of QOCS and the previous attempts of Defendants to defeat QOCS, please click here.
Park v Butler  EWHC 1251 (QB)
The original matter arose out of a road traffic accident, which occurred on 10 April 2013. The matter was allocated to the fast track and was heard by Her Honour Judge Pemberton on 3 March 2015; the claim for personal injuries was dismissed. The Claimant appealed the decision and the appeal was heard on 23 May 2016 by Mr. Justice Edis; it was found that the reasoning of the Judge could not be sustained, however the issue of liability was again dealt with and Mr. Justice Edis found the matter was properly dismissed, albeit for different reasons than Her Honour Judge Pemberton.
The Defendant, following their successful defence of the appeal, sought an order for costs. The Court summarily assessed costs in the sum of £2,795.21 including VAT. It is important to note that the fixed costs regime did not apply in this matter as the CNF was dated 12 July 2013. QOCS applied in the matter as the accident date occurred 10 days after the changes on 1 April 2013. As the Claimant had not been able to recover any damages or interest, the costs order was not enforceable without permission pursuant to CPR 44.14.
The Judge was required then to decide whether the costs order made on appeal was subject to the same rules as the main action.
The Defendant argued that the provision in relation to the costs of appeal under CPR 52.9A would not be required if the appellate proceedings were subject to the same costs regime as the main proceedings.
The Claimant drew the Judge’s attention to the decision of Master Haworth in Landau v The Big Bus Company (31 October 2014, unreported) where, as QOCS did not apply to the matter in the first instance, the Court held that it would not apply to all proceedings arising out of the same matter. Furthermore the appeal was part of the same proceedings for the purposes of CPR 47.17.
Using the decision of Master Haworth, Mr. Justice Edis determined that, as the appeal forms part of the proceedings, it would therefore fall under the QOCS regime and that the costs order would not be enforceable.
“An appeal by a claimant against the dismissal of his claim for personal injuries is a means of pursuing that claim against the defendant or defendants who succeeded in defeating that claim at trial. There is no difference between the parties or the relief sought as there is between the original claim and the Part 20 claim. Most importantly, to my mind there is no difference between the nature of the claimant at trial and the appellant on appeal. He is the same person, and the QOCS regime exists for his benefit as the best way to protect his access to justice to pursue a personal injury claim. To construe the word "proceedings" as excluding an appeal which was necessary if he were to succeed in establishing the claim which had earlier attracted costs protection would do nothing to serve the purpose of the QOCS regime. The other construction, which holds that for the purposes of CPR Part 44.13 an appeal between the claimant and the defendant in a personal injury claim is part of the proceedings which include a claim for personal injuries is open to me, following Hawksford Trustees Jersey Limited, and should be preferred because it more justly achieves what is plainly the purpose of the regime as divined from the Rules.”
It follows from the above that when there is an appeal, the appeal be treated as part of the original proceedings and follow under the same costs regime of the main proceedings. This matter may not be that wide reaching but it does offer security to the Claimant that they are protected under QOCS when pursuing a claim to appeal, if the original matter was under the QOCS regime, unless there is an exception to this under CPR 44.15 or 44.16.
There are larger ongoing discussions, following the introduction of QOCS, within the legal community as to the fairness of the costs regime. QOCS of course counterbalances the Claimant no longer being able to recover success fees and ATE premiums, following the Jackson reforms. It also encourages Defendants to make early and reasonable attempts to negotiate, by being able to recover their fees following the late acceptance of a Part 36 offer or beating the Part 36 offer at trial. In addition, QOCS is not a guaranteed protection for the Claimant due to the various exceptions to QOCS. It does however throw into question issues in relation to access to Justice, as it can be viewed that it may force Defendants into commercial settlements which they may not otherwise agree, to protect themselves due to the risk on costs.
One thing is for sure, this will not be the last claim where Defendants try and beat QOCS and try to recover their costs.