We have talked before about Qualified One Way Costs Shifting (QOCS). The idea of QOCS followed the decision to remove the rights of claimants in Personal Injury cases to recover the premium payable for After the Event insurance from the other side. This insurance was how they protected themselves against adverse legal costs if their claim failed. Under the new rules, a losing claimant would not, in most circumstances, be required to pay the other sides costs if their claim failed.

QOCS has not been without it problems!

One issue has recently been decided by the court in the case of Wickes Building Supplies Ltd v Blair [2020] EWCA Civ 17. This is all about what happens when there is an appeal.

The underlying case concerned an accident at work. A Claim was issued under the protocol as liability was admitted but quantum was not agreed. The matter proceeded to Stage 3 hearing where the District Judge awarded £2000 damages and £1080 costs. The claimant appealed on the grounds that the DJ should have allowed him to issue fresh proceedings under Part 7 as there had been new evidence. That appeal succeeded before the circuit judge. The Court of Appeal overturned this decision and reinstated the original judgment.

The question of QOCS arose because the Claimant had lost the appeal. Who was to pay those costs? In other words, did QOCS extend to an appeal? Was the appeal part of the original action or was it part of fresh proceedings?

The decision of the Court of Appeal made reference to the judgment of Edis J in Parker v Butler [2016] EWHC 1251 (QB) –

“In my judgment for the purposes of the QOCS regime any appeal which concerns the outcome of the claim for damages for personal injuries or the procedure by which it is to be determined is part of the proceedings as defined in CPR 44.13. Therefore an order for costs against the claimant in favour of a defendant will only be enforceable to the extent permitted by the QOCS regime” (Para 18.)

Lord Justice Baker adopted the decision of Edis J in Parker, saying –

“As Edis J observed at paragraph 3 of his judgment in Parker v Butler, if a claimant’s access to justice is dependent on the availability of the QOCS regime, that access will be significantly reduced if he is exposed to a risk as to the costs of any unsuccessful appeal which he may bring or any successful appeal a defendant may bring against him. It follows that, as Edis J noted at paragraph 17 of his judgment, to construe the word “proceedings” as excluding an appeal would do Judgment Approved by the court for handing down. Double-click to enter the short title nothing to serve the purpose of the QOCS regime.” (Para 29)

So QOCS does extend to appeals because of the underlying importance of its role in securing access to justice.

This has clarified an important grey area which has been on increasing concern to those who advise victims of accidents.

We have long experience in dealing with issues arising from QOCS and the recovery of legal costs. Please feel free to contact us to discuss.

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