QOCS, STRIKING OUT AND THE LIABILITY TO PAY IN FULL: A COUNTY COURT DECISION

I am grateful to Colm Nugent of Hardwicke Chambers for sending me a copy of the judgment in Wall -v- British Canoe Union. A decision of HH Judge Lopez in Birmingham County Court on the 30th July 2015.  The judgment deals with important issues of negligence and liability which makes it worthwhile reading in any event. However here we are concerned solely with the issue of QOCS. The case is a stark reminder that QOCS protection does not apply in a case where an action is struck out when a claimant has shown no reasonable grounds for bringing the proceedings.

(The order and judgment is attached to this blog and is available  on this link wardvBCU)

KEY POINTS

  • The QOCS provisions apply to claims brought under the Fatal Accidents Act and Law Reform (Miscellaneous Provisions) Act 1934 (Rule 44.13(1).
  • Orders made against the claimant may  be enforced to the full extent of such orders without the permission of the court where proceedings have been struck out on the grounds that (a) the claimant has disclosed no reasonable cause of action;(b) the proceedings are an abuse of the court’s process; or (c) the conduct of the claim by the claimant, or someone acting on the claimant’s behalf, is likely to obstruct the course of justice.
  • Where the claimant’s case has been struck out for showing no reasonable cause of action a costs order may be enforced in full..
  • In this case the action was struck out as showing no reasonable cause of action and the claimant was ordered to pay costs in full (which were stayed pending any appeal).

THE CASE

The claimant’s husband was killed in a weir whilst canoeing. She brought an action against the British Canoe Union claiming that it was negligent in that a published guide gave a recommended route down the weir in question whereas earlier guides had recommended portaging the weir. The defendant applied to strike out the claim and obtain summary judgment ob the claim on the grounds that there was no duty of care in law and no reasonably arguable claim on causation. The defendant’s application was successful.

THE JUDGMENT IN RELATION TO QOCS

Paragraphs 48 – 51 of the judgment discusses QOCS. The judge found that:

“Costs
48.Rule 44.2 (1) of the CPR provides that the Court has discretion as to (a) whether costs are payable by one party to another; (b) the amount of those costs; and (c) when they are to be paid. Rule 44.2(2) provides that if the Court decides to make an order about costs (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but (b) the Court may make a different order. Rule 44.2(4) provides that in deciding what, if any, order to make about costs, the Court will have regard to all the circumstances, including, inter alia (a) the conduct of the parties; and (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful. Rule 44.2(5) provides that conduct includes whether it was reasonable for the party to raise or pursue a particular allegation or issue.
Qualified One-Way Costs Shifting
49. Rule 44.13(1) CPR provides that the section applies to proceedings which include a claim for damages for personal injuries; under the Fatal Accident Act 1976; or for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 arises out of death or personal injury.
50. Rule 44.14(1) provides that subject to, inter alia, rule 44.15, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.
51. Rule 44.15(1) provides that orders made against the claimant may be enforced to the full extent of such orders without the permission of the court where the proceedings have been struck out on the grounds that (a) the claimant has disclosed no reasonable grounds for bringing the proceedings; (b) the proceedings are an abuse of the court’s process; or (c) the conduct of (i) the claimant; or (ii) a person acting on the claimant’s behalf and with the claimant’s knowledge of such conduct, is likely to obstruct the just disposal of the proceedings.
52. Therefore, where the claimant’s claim has been struck out a costs order may be enforced in full. However, in such a case the claimant will not have been awarded any damages so the rule allows full enforcement of the of any costs orders made in the defendant’s favour in the proceedings as if the Qualified One-Way Cost shifting did not exist.”

THE DECISION IN THIS CASE

The defendant succeeded in striking out the claim. The judge ordered, pursuant to Rule 44.15(1) of the CPR that the Claimant will pay the Defendant’s costs to be assessed within 14 days of the handing down of the judgment. (Although the order itself stayed the assessment and enforcement of costs untll determination of any appeal).

CPR 44.14

Exceptions to qualified one-way costs shifting where permission not required

44.15  Orders for costs made against the claimant may be enforced to the full extent of such orders without the permission of the court where the proceedings have been struck out on the grounds that –
(a) the claimant has disclosed no reasonable grounds for bringing the proceedings;
(b) the proceedings are an abuse of the court’s process; or
(c) the conduct of –
(i) the claimant; or
(ii) a person acting on the claimant’s behalf and with the claimant’s knowledge of such conduct,
is likely to obstruct the just disposal of the proceedings.

RELATED POSTS ABOUT QOCS

2 comments

  1. I had an interesting discussion with a recently retired costs master on the subject of QOWCS during a costs course I was running – the question was should a solicitor ensure that a LF insures a child’s claim where there might, but probably would not be, a risk of strike out on the question of liability or conduct, for example where the LF who is impecunious, ceases to cooperate?

    The area, in short, is a minefield – RCJ Lumb handed down the sensible decision recently which prevented routine recovery of child ATE policies, yet here, thanks Colm, the real risk is exposed. Yet how can a child or the LF be protected if ATE premiums are not recoverable?

    Does anyone else sense that we are seeing, across every aspect of civil procedure, a real malaise arising through incoherent attempts to impose general rules inspired by a reformer who has never actually argued the CPR as a practitioner and a politician, late lamented out of office, who was in hoc to the one sectional interest?

    There is a need for urgent review of the rules across the board because they now have the quality of the last days of the RSC in early 1999. They are a code of little sense which has inspired satellite litigation through costs budgets and a real inequality of arms.

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