Background:
· Claim for Personal Injury: The claimant pursued a personal injury claim due to clinical negligence, which was settled through a Tomlin order (there was therefore no order for damages in the claimant’s favour).
· Costs Dispute: The claimant was awarded costs, but the amount was disputed, leading to DA proceedings. The claimant did not beat the defendant’s Part 36 offer, entitling the defendant to a costs order in the DA.
· QOCS Regime: The defendant sought to enforce the costs order, but the claimant argued that QOCS protection precluded enforcement.
Legal Analysis:
QOCS Regime and Relevant Rules:
· Purpose: Introduced in 2013 to protect personal injury claimants from adverse costs, ensuring they are not deterred from pursuing claims due to potential liability for defendants’ costs.
· Scope: QOCS applies to proceedings involving personal injury claims (CPR 44.13).
Defendant’s Position:
· DA proceedings are distinct and separate from the substantive personal injury proceedings; they require a separate originating process.
· DA can be initiated independently, even if the substantive claim is settled without formal proceedings.
· The QOCS rules and case law support that DA proceedings do not fall within the scope of personal injury claims protected by QOCS.
· Allowing QOCS to apply to DA would undermine the legislative intent to incentivize early settlement and fair costs management.
Claimant’s Position:
· The term "proceedings" in CPR 44.13 should be interpreted broadly to include DA, reflecting the purpose of QOCS.
· Excluding DA from QOCS would leave claimants potentially liable for defendants’ costs, contrary to QOCS's protective purpose.
· Case law supports a purposive interpretation that aligns with the broader legislative intent to protect personal injury claimants from adverse costs.
Court's Conclusion:
Deputy Costs Judge Roy KC favored the claimant’s interpretation, concluding that:
· Broad Interpretation: The term "proceedings" should include DA, aligning with the purpose of QOCS to protect personal injury claimants from incurring net costs liabilities.
· Legislative Intent: The claimant’s interpretation better aligns with the legislative intent as outlined in the Supreme Court’s analysis in Ho v Adelekun, ensuring claimants are not left with net costs liabilities.
Outcome:
· QOCS Application: QOCS precludes the defendant from enforcing his costs order from the DA against the claimant.
· Permission to Appeal: Granted to the defendant, acknowledging the significant and finely balanced nature of the legal question.
Key Points for PI specialists and costs lawyers:
· QOCS Scope: DA proceedings can fall within the scope of QOCS, providing costs protection to personal injury claimants.
· Legislative Intent: Courts may adopt a purposive approach to interpret the QOCS rules, focusing on protecting claimants from adverse costs.
· Potential for Appeal: Given the complexity and novelty of the issue, higher courts may provide further clarification on the application of QOCS to DA proceedings.
Link to judgment: Challis v Bradpiece [2024] EWHC 1124 (SCCO) (13 May 2024) (bailii.org)
