The application of QOCS is in theory straightforward. CPR 44.13 sets out the types of cases which are included, namely personal injury, claims brought under the Fatal Accidents Act 1977 or claims brought under Section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934. The same section also specifically states that applications for pre-action disclosure are excluded. The CPR is, however, silent regarding the position on Part 20 claims brought in personal injury cases.
In the case Wagenaar v Weekend Travel Limited t/a Ski Weekend & Nawelle Serradj [2014] EWCA Civ 1105 the Court of Appeal were asked to consider this very point. In the claim Dr Wagenaar sued the Defendant, Weekend Travel Limited, in respect of personal injury suffered whilst on a ski trip organised by the Defendant. During the course of the litigation the Defendant added Ms Serradj to the proceedings as a third party to the proceedings. The Defendant alleged that any negligence in the case was caused by the third party and not by them.
The matter proceeded to trial before HH Judge Ian Hughes QC. The Claimant’s claim was dismissed. The court ordered the Claimant to pay the Defendant’s costs but the order was not to be enforced in light of the operation of CPR 44.13. In respect of the third parties costs the court ordered the Defendant to pay those but again made an order that they were not to be enforced by virtue of CPR 44.13. The third party was granted leave to appeal in respect of the decision to apply QOCS. The Defendant also sought permission to appeal the decision to apply QOCS in respect of its costs recoverable from the Claimant.
The court dismissed the Defendant’s appeal and allowed the Third Parties appeal. In doing say the court stated that the true meaning of proceedings for the purposes of QOCS “[applies] to a single claim against a Defendant or Defendants, which includes a claim for damages for personal injuries or the other claims specified.” In respect of the Third Parties costs the court stated that the Defendant had taken the commercial decision to add the Third Party to the proceedings and as such it should bear the risk, including relating to costs, of doing so. The court therefore set aside the original costs order and ordered that the Defendant should pay the Third Parties costs of the proceedings, on the standard basis, to be assessed if not agreed.
This case is a perfect example of how a simple principle can become somewhat more difficult and complex. Here at MRN we are experts at providing you with timely and commercially minded advice on issues such as this to ensure you can best represent your client’s interests and ensure you recover the costs you are entitled to.