On 13 November 2020 Her Honour Judge Clarke handed down judgment in the matter of Waterfield and Ors v Dentality Ltd and Ors CC (Oxford). The judgment deals with the question of QOCS following an Application hearing on 4 August 2020 wherein 26 potential Claimants had applied for a Group Litigation Order (GLO).
The First Defendant is a dental practice from which the Second Defendant practices as a dentist. The Third Defendant is a dental hygienist who provided services to the Practice from June 2017, through her company the Fourth Defendant.
One of the Dental Nurses at the Practice raised concerns that the Third Defendant was not following the Practice’s policy for decontamination of instruments. At a subsequent meeting she admitted reusing dental equipment (specifically, scaler tips) on multiple patients rather than carrying out decontamination and sterilisation procedures between each one.
The Second Defendant terminated the Third Defendant’s contractual relationship with the Practice and on 12 November 2018 notified the matter to Public Health England and the General Dental Council. All of the patients identified as having been treated by the Third Defendant were notified and of those patients, 26 indicated their intention to pursue a claim for damages.
The Claimants’ representatives made an application for a GLO and their position was such that the Application had been made pre-action in order to save additional costs. All four Defendants opposed the Application and the making of a GLO on the basis that they Claimants had failed to provide sufficient information; failed to consider any other (more appropriate) order and failed to provide evidence of what costs would be saved.
In the Judgment Judge Clarke declined to make a GLO, on the basis that is was inadequate and premature. The Application was therefore dismissed but the Claimants were granted liberty to reapply at a later date, if appropriate.
Judgment on QOCS
Following the dismissal of the Application the Defendants sought an order for their costs, pursuant to the general rule that the unsuccessful party pays the costs of the successful party. The Claimants argued that QOCS would apply and therefore any costs order could not be enforced without permission of the court. The Defendant’s stance was that proceedings had not commenced and so QOCS did not apply. It was common ground between the parties that none of the potential Claimants had issued claims at that stage.
In her judgment Judge Clarke applied the case of Wagenaar v Weekend Travel Limited t/a Ski Weekend  and held that in accordance with the rules “proceedings” only commenced when the court issued a claim form on the request of a Claimant:
“The issue before me is whether “proceedings” in rule 44.13 encompasses pre-action claims, and in those circumstances, it seems to me that rule 7.2 is not only relevant but directly on point.”
CPR Rule 7.2 (1) provides that proceedings are started when the court issues a claim form at the request of the claimant. The Judge held that ‘proceedings’ in CPR 44.13 had to be construed in accordance with CPR 7.2 which, by definition, excludes all pre-issue applications.
Consequently, the qualified one-way costs shifting rules did not apply to pre-issue applications and this included a pre-issue group litigation order application.
It is of course useful to have a Judgment providing a specific decision as to QOCS in pre-action applications. However, given the importance of the term “proceedings” under CPR 44.13 in personal injury matters, a decision from a superior court as to its definition would be welcomed so as to alleviate the many conflicting Judgments regarding this issue.