In Parker -v- Butler  EWHC 1251 (QB) Mr Justice Edis decided that QOCS protection continued to apply when a claimant appealed.
“To construe the word “proceedings” as excluding an appeal which was necessary if he were to succeed in establishing the claim which had earlier attracted costs protection would do nothing to serve the purpose of the QOCS regime.”
- The protection of qualified one way costs shifting continued to apply to a claimant who appealed against a finding of liability.
- The word “proceedings” covered an appeal and would not be construed restrictively.
The claimant appealed against the dismissal of his claim for personal injury damages. The appeal was unsuccessful. The defendant applied for costs. It was common ground that the costs of the original trial was subject to QOCS protection.
The judge reviewed the law and rules as to qocs and considered the competing contentions.
Discussion and decision
Following the approach in Wagenaar I accept that not every step in proceedings (broadly defined) which began with a claim for personal injuries is included in the definition of the word “proceedings” as used in CPR 44.13. That word as there used has a narrower construction than that. That rule is all about a claim made by a claimant against one or more defendants which includes a claim for damages for personal injuries. For this reason a claim by a defendant against a third party for a contribution to or indemnity against such a claim is included in the proceedings as broadly defined, but not as narrowly defined for the purposes of CPR 44.13.
An appeal by a claimant against the dismissal of his claim for personal injuries is a means of pursuing that claim against the defendant or defendants who succeeded in defeating that claim at trial. There is no difference between the parties or the relief sought as there is between the original claim and the Part 20 claim. Most importantly, to my mind there is no difference between the nature of the claimant at trial and the appellant on appeal. He is the same person, and the QOCS regime exists for his benefit as the best way to protect his access to justice to pursue a personal injury claim. To construe the word “proceedings” as excluding an appeal which was necessary if he were to succeed in establishing the claim which had earlier attracted costs protection would do nothing to serve the purpose of the QOCS regime. The other construction, which holds that for the purposes of CPR Part 44.13 an appeal between the claimant and the defendant in a personal injury claim is part of the proceedings which include a claim for personal injuries is open to me, following Hawksford Trustees Jersey Limited, and should be preferred because it more justly achieves what is plainly the purpose of the regime as divined from the Rules.
That construction derives particular force from the facts of this case. The appeal concerned the way in which the judge had determined the claim for personal injuries. It was inextricably linked with that claim. Having found that her approach was flawed, I went on and determined the claim myself (following Cooper v. Floor Cleaning Machines Limited  EWCA Civ 1649). It would be very difficult to describe a hearing at which the claim was determined as not part of the proceedings which include that claim. This reasoning will not apply so closely to other types of appeal, but it illustrates the point. 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.
I do not accept that this construction is affected by CPR 52.9A. This allows the court to make an order (generally at a very early stage of the appeal proceedings) to alter the consequences of the general scheme for costs in civil appeals in cases where other rules applied to the proceedings which resulted in the decision against which the appeal is brought. This covers cases where there are no special rules governing the costs in the appeal court, but there are in the proceedings below. This does not apply to cases where, on a proper construction of the rules, the same regime applies to the proceedings at first instance and on appeal. The fact that the court has a discretion to limit the costs orders which may be made protectively in a variety of situations is simply irrelevant to the present issue.
For these reasons the costs order which I have made will not be enforceable. I was told that some courts include this provision in the order and others do not, since it is a consequence of the rules and not of any judicial decision. In this case the result will appear in the order, for the avoidance of doubt.
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