Page 11 - PIC Magazine Spring Issue 15
P. 11

   Rule 44.16(2) provides as follows:
(2) Orders for costs made against the claimant may be enforced up to the full extent of such orders with the permission of the court, and to the extent that it considers just, where –
(a) the proceedings include a claim which is made for the financial benefit of a person other than the claimant or a dependant within the meaning of section 1(3) of the Fatal Accidents Act 1976 (other than a claim in respect of the gratuitous provision of care, earnings paid by an employer or medical expenses); or
(b) a claim is made for the benefit of the claimant other than a claim to which this Section applies.
Coulson LJ explained the meaning of the last sub- paragraph:
33. In my view, the exception at r.44.16(2)(b) was designed to deal with the situation where a claim for damages for personal injury was only one of the claims being made in the proceedings. In those circumstances, the automatic nature of the QOCS protection falls away. But of course, that is not the end of the matter: it then becomes a question of the judge’s discretion. I refer to that issue again in Section 5.4 below.
So far so simple. But as in many contexts where costs issues are concerned, confident statements
of principle expressed in disarmingly simple terms can be difficult to implement when considering where pounds and pence have to be calculated. The court therefore went on to elucidate how
the issue of costs in an action where there were claims benefiting from QOCS and other claims not benefiting from QOCS fell to be practically dealt with, together with some trenchant comments along the way:
54. The starting point is that QOCS protection
only applies to claims for damages in respect of personal injuries. What is encompassed by such claims? It seems to me that such claims will include, not only the damages due as a result of pain and suffering, but also things like the cost of medical treatment and, in a more serious case, the costs of adapting accommodation and everything that goes with long term medical care. In addition, contrary to the submissions advanced by Ms Darwin and
Mr Jaffey, I consider that a claim for damages for personal injury will also encompass all other claims consequential upon that personal injury. They will include, for example, a claim for lost earnings as a result of the injury and the consequential time off work. 55. In other words, a claim for damages in respect of personal injury is not limited to damages for pain and suffering. For these reasons, as Whipple J noted at [60] of her judgment, claimants in a large swathe of ‘ordinary’ personal injury claims will have the protection and certainty of QOCS.
The most interesting
part of the judgement is the commentary in paragraphs 56 and 57, which illustrate how credit hire claims which have conveniently proceeded under the shield of QOCS may now do so no longer.
Conversely, claims for breach of data protection legislation or claims under the Human Rights Act 1998 would not attract protection and open the doorway to the disapplication of QOCS. The most interesting part of the judgement is the commentary in paragraphs 56 and 57, which illustrate how credit hire claims which have conveniently proceeded under the shield of QOCS may now do so no longer, in circumstances, where correctly identified, a road traffic accident will almost always result in a number of causes of action: for personal injury, and for property damage to the vehicle, conveniently brought in the same claim
form, but in reality separate claims. Having opened
a trap door, under the credit hire industry, the court then swiftly put in place a safety net, which for most purposes will nullify the scope of paragraph 56 by noting in paragraph 57 that if the proceedings can
“in the round” be described as a personal injury case QOCS would still apply.
This case illustrates both the dangers and the opportunities that bringing a mixed claim poses
for claimants and practitioners: on the one hand
a modest personal injury claim, brought properly alongside a larger claim such as a credit hire claim or a claim under the Human Rights Act 1998 may prove a useful “shield” against adverse costs orders. On the other hand, to do so could backfire horribly, as the loss of the larger claim could result in the loss of QOCS protection, which coupled with a liability for adverse costs common to both claims, could prove disastrous to the claimant, and leave a practitioner who has blithely assumed
    and advised his client that no greater costs protection is required than QOCS, open
to a professional negligence action.
Andrew’s blog on costs and litigation funding can be found at
Andrew Hogan, Barrister Spring 2020 PARTNERS IN COSTS

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