MORE ABOUT QOCS: CAN THEY APPLY ON APPEAL IF THE CLAIMANT HAD A PRE-APRIL 2013 CFA?

An earlier post on the risks posed by the transitional provisions of QOCS led to several comments. One of those comments was the question whether you can get QOCS protection on appeal if the original CFA did not cover appeals.  A decision of  a High Court Master last month gives a clear answer to this question.

THE QUESTION

The question was from “anonymous”.

“If you have entered a CFA with a client for a PI case, that is then the subject of an appeal, if the CFA does not cover an appeal can you enter into a new retainer and get the protection of QOCS?”

THE  ANSWER READ THE ACL WEBSITE TODAY (& THEN LOOK AT HAILSHAM CHAMBER’S WEBSITE)

The Association of Cost Lawyers website today carries a report of Landau -v- The Big Bus Company a decision of Master Haworth on the 31st October 2014.

There is a link to the decision itself which is on Hailsham Chamber’s website available here.

There is a note by Jamie Carpenter counsel for the second defendant in the case on Hailsham Chambers’ website.

THE ISSUE: A POST-APRIL CFA ON APPEAL AFTER A PRE-APRIL CFA FOR TRIAL

The claimant entered into a pre-April 2013 CFA and did not have the benefit of QOCS at the first trial. Subsequently he entered into a second conditional fee agreement. The question was whether the claimant acquired the benefit of QOCS in relation to the appeal.

THE DECISION: ONCE A CFA WITH LIABILITIES HAD BEEN ENTERED INTO QOCS COULD NEVER APPLY

The Master carried out a detailed consideration of the rules and the relevant case law. He decided that the reference to “proceedings”  in the rules means “claim” and that the proceedings, both at first instance and on appeal, plainly concern the same claim. “It is obvious and was plainly intended that “proceedings” in Rule 44.13(1) CPR and in rule 44.17 CPR includes an appeal”.

The Master had considerable sympathy for the claimant. However his view was that any other construction could lead to an absurd result.

THE ANSWER TO THE QUESTION IS A BLUNT ONE

If you had a pre-April 2013 CFA you cannot get the benefit of QOCS on an appeal.

3 comments

  1. John Hall · · Reply

    What if your original CFA exculded Appeals?Does this mean you can recover a success fee and a ATE premium for the Appeal or does it mean you have the worst of both worlds i.e. no recoverable success fee ,obliged to take out another ATE policy the premium for which will be high and not recoverable and a costs order against you if you lose.

  2. Anonymous · · Reply

    The absurdity of the decision is that a Claimant is effectively unable to appeal unless they have very deep pockets. So much for access to justice.

  3. What would be the position where the claimant had a CFA pre April 13 but his solicitors abandoned the claim due to low prospects, and the claimant then entered into a post LASPO CFA with new solicitors? Is he deprived of QOCs because he had had a pre commencement CFA even if that CFA is no longer in force?

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