There has been an interesting judgment in November 2021 about Notices of Discontinuance and the QOCS – McDonald and Excalibur and Keswick Groundworks Ltd v Interserve PLC. This was reported by Costs Barrister, Andrew Hogan at

The original claim was for personal injuries suffered in an accident at work in May 2016. The claimant was climbing a ladder in order to fix a string line to the roof of a building to fix a drain pipe. The ladder slipped and he fell. His pleaded case was that “The ladder was tied to scaffolding by a piece of string” and that therefore it was inadequately secured.

The claim was defended. The defence alleged that there was no need for the claimant to have used a ladder because the scaffolding was adequate. If the ladder was inadequately secured, it was the defendant’s case that this was the claimant’s fault.

There was a problem with the Claimants evidence. In his statement he said –

“… the ladder I used in my accident was not secured … I did not try to move it because I assumed it was tied, even though I do not actually believe that it was”

So there was clear discrepancy between the pleaded case and the statement.

Following some discussion, the claimant filed a notice of discontinuance. Not surprisingly there followed a dispute about costs. Because it was a Personal Injury claim the claimant argued that QOCS applied. The Defendant disagreed. They said that in view of the factual issues, the claim should never have been issued. They said that the claimant “was guilty of conduct which was likely to obstruct the just disposal of the proceedings” and “was not deserving of the protection of QOCS”. The defendant submitted that the Notice of Discontinuance should be set aside, that the claim be struck out and that QOCS be disapplied. The district judge agreed with the defendant. She found that his conduct was “likely to obstruct the just disposal of the proceedings”. She struck out the claim and disapplied QOCS on the ground that “this Claimant was not deserving of such protection”.

The decision was overturned by HHJ Freedman on appeal. The primary issue was that the District Judge had failed to consider whether there were reasonable grounds for filing a Notice of Discontinuance. It was entirely reasonable for such notices to be served following a re-evaluation of the merits of the claim. In the absence of some abuse of process it was wrong to set aside the Notices just to deprive the Claimant of QOCS.

“However, the mere fact that the claim became unsustainable because of differing accounts as to the precise circumstances of the accident, to my mind, is wholly outwith what is contemplated by conduct likely to obstruct the just disposal of proceedings.”

So the District Judge was wrong to set aside the Notices. But what about the statement that the claimant was not deserving of QOCS protection. The judge found that there is nothing in the rules that deprives a claimant of protection just because they discontinue. The claimant could discontinue as of right. Permission was not required. He noted that the District Judge had not been given the opportunity to consider the authorities an said –

“With the benefit of the authorities, the District Judge would, I venture to think, have concluded that the mere fact that the Appellant was seeking to retain QOCS protection was not a reason to set aside the Notices of Discontinuance. Further, she would have been persuaded that there was nothing about the conduct of the Appellant which was so out of the ordinary as to warrant the unusual, if not exceptional, course of setting aside the Notices of Discontinuance. Had she reached that conclusion, then there would have been no legitimate basis for her to go on to consider the exceptions to QOCS.”

Late discontinuance of the claim on the basis of a reconsideration of the merits was not a bar to discontinuing or to exclude the application of QOCS.

This is good news for claimants who would otherwise have been deterred from such reassessments. It would have actually been less damaging to press on.



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