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QOCS in appeals

The effect of qualified one way costs shifting (QOCS) protection means that a costs order against a personal injury claimant can only be enforced up to the amount of any damages ordered in favour of the claimant. Often, where claimants are wholly unsuccessful, this avoids the payment of any costs.

Wickes Building Supplies Limited v Blair (No.2) (Costs) [2020) EWCA Civ 17

The Court of Appeal has recently held that a personal injury claimant enjoys QOCS protection not just for the costs of the first instance proceedings but also any subsequent appeal.

The effect of this being that a defendant who wholly defeats a claim and thereafter defeats an appeal arising from that claim; will be unable to enforce recovery of any costs dealing with the main action or the appeal.

This Court of Appeal ruling provides useful clarification. That said; it is important to remember that the claimant will remain responsible for their own costs of pursuing an appeal. Prior to pursuing an appeal it is necessary to advise the client on the costs of an appeal and ensure appropriate funding arrangements are in place.

Other key QOCS authorities:

This decision in Wickes v Blair follows a number of Court of Appeal cases in recent years which have considered the circumstances in which the QOCS rules will apply:

Defendant joining a third party

In Wagenaar v Weekend Travel Limited t/a Ski Weekend and Serradj [2014] EWCA Civ 1105 the Court of Appeal held that a personal injury claimant has QOCS protection to a single personal injury claim against a defendant or against multiple defendants. However, where a defendant joins a third party, the defendant does not have QOCS protection for any costs order between the defendant and the third party.

Motor Insurers’ Bureau claims

In Howe v Motor Insurers’ Bureau [2017] EWCA Civ 932 the Court of Appeal held QOCS applies to claims against the MIB.

Multiple Defendants

In Cartwright v Venduct Engineering Limited [2018] EWCA Civ 1654 the Court of Appeal held an innocent defendant can enforce costs against a claimant (limited to the amount of the claimant’s damages ordered) in situations where the claimant has been successful against another defendant.

Ordered Damages

Again in Cartwright, it was noted that the settlement was recorded under a Tomlin Order Schedule. As Tomlin Orders are not ‘orders of the court’ the QOCS rules did not apply and the innocent defendants were not able to enforce their costs as the claimant had not in fact had any damages ordered in their favour.

Mixed Claims

A ‘mixed claim’ is a claim that includes a claim for damages for personal injury but also  for non-personal injury damages or relief.

In Brown v (1) The Commissioner of Police of the Metropolis (2) The Chief Constable Of Greater Manchester Police (Intervener) The Equality And Human Rights Commission [2019] EWCA Civ 1724[5] the Court of Appeal held QOCS protection does not automatically apply to ‘mixed claims’.

However for ‘ordinary’ personal injury claims with a non-PI component – QOCS protection is the starting point.  Lord Justice Coulson stated:

“If the proceedings can fairly be described in the round as a personal injury case then, unless there are exceptional features of the non-personal injury claims (such as gross exaggeration of the alternative car hire claim, or something similar), I would expect the judge deciding costs to endeavour to achieve a ‘cost neutral’ result through the exercise of discretion. In this way, whilst it will obviously be a matter for the judge on the facts of the individual case, I consider it likely that, in most mixed claims of the type that I have described, QOCS protection will – in one way or another – continue to apply”

Posted on Mar 4th, 2020 by Lyons Davidson

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