THE TRANSITIONAL PROVISIONS OF QOCS: IMPORTANT AND INTERESTING DECISION: THE MEANING OF “PROCEEDINGS”

There is an interesting decision on checkmylegalfees.com website in relation to the transitional provisions of the QOCS regulations.  The full transcript of Casseldine -v- The Diocese of Llandaff Board for Social Responsibility (Regional Costs Judge Phillips, Cardiff County Court 15th July 2015)  is also available here. (Courtesy of the same website).

THE CASE

The claimant lost a personal injury trial. The issue was whether QOCS applied.

  • The claimant initially instructed Thompsons to act and they entered into a funding arrangement on the 2nd March 2012 and obtained an ATE policy on the 9th March.
  • Thompsons terminated their retainer on the 13th January 2013.
  • On the 6th August 2013 the claimant entered into a new conditional fee agreement with different solicitors.
  • The current proceedings were issued on the 1st December 2014 and were unsuccessful at trial.

The issue was whether the claimant had the protection of QOCS.

THE TRANSITIONAL PROVISIONS

CPR 44.17 provides that the QOCS protection

does not apply to proceedings where the claimant has entered into a pre-commencement funding arrangement (as defined in rule 48.2)”.

THE DEFINITION IN CPR 48.2.

The definition at CPR 48.2 (p.1632) is complex.It refers back to CPR 43.2(1)(k)(i),(ii) and (iii). (CPR part 43 has, in fact, been revoked)  In essence where a claimant has:

  • entered into a conditional fee agreement,;
  • taken out an ATE insurance policy,
  • or entered into an agreement with a membership organisation.

Then QOCS does not apply.

Note that the rule is “has entered into”.  The exemption is not limited to cases where there is a CFA in place.

THE FINDING

The District Judge found that

  • Proceedings were never commenced in relation to the first CFA but only the second.
  • The term “proceedings”  had to be construed in the proper context of the change in the rules.
  • In the present case the claimant had issued “proceedings” in relation to the second CFA and not the first. The second CFA was entered into post-1st April 2013 and therefore the court was never in a position to order the defendant to pay the claimant’s additional liabilities.
  • No “proceedings” were issued in relation to the first CFA.
  • Consequently the judge found that the claimant had QOCS protection as she had not entered into a pre-commencement funding arrangement as defined by CPR 48.2.

COMMENT

This subject has been looked at before on this blog. I have been involved in a (first instance) case where a district judge took the opposite view. The judge found that these provisions were designed, specifically, to stop a party “chopping and changing” from the old-style CFA to a case with QOCS protection.

Permission to appeal has been granted in the Casseldine case.

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