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Sarah Robson Barrister
0800 634 9650
The original Black Belt Barrister
email@sarahrobsonbarrister.co.uk
Fixed Costs Specialist
Key Points
QOCS applies to all appeals which concern the outcome of a claim for damages for personal injuries
and
The court considered the appropriate regime of costs
Wickes Building Supplies Ltd v Blair
(No. 2) (Costs)
[2020] EWCA Civ 17
Following the substantive appeal decision in [2019] EWCA Civ 1934, the Claimant agreed they should pay the Defendant their costs of the appeal. However, they maintained that Qualified One Way Costs Shifting ("QOCS") applied, and there was a dispute over how to calculate the quantum of costs.
Following the close of submissions but before handing down of the judgment, the Defendant offered a 'Mexican Stand off', i.e. for each party to walk away with no further costs payable by either side, which the Claimant duly accepted. The judgment is therefore for academic interest only, but should prove useful in other cases.
The Parties relied on a number of decisions, but the CA found just three were relevant:
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Firstly, Hawksford Trustees Jersey Ltd v Stella Global UK Ltd & another [2012] EWCA Civ 987. There the court considered whether 'proceedings' is s29 of the Access to Justice Act 1999 included both the trial and any appeal. The majority held they were separate proceedings for the purposes of costs.
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Secondly, the court considered Wagenaar v Weekend Travel Ltd [2014] EWCA Civ 1105, where Vos LJ said at [38] how the meaning of the word 'proceedings' in CPR 44.13 had to be divined primarily from the rules on QOCS themselves.
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Thirdly, the court considered Parker v Butler [2016] EWHC 1251 (QB), where Edis J had held that QOCS applied on first tier appeal. Here, Wickes urged the court to prefer the construction of the word 'proceedings' adopted in Hawksford over the reasoning in Parker v Butler.
At [28], Baker LJ, giving the lead judgment, held that QOCS did apply. He preferred the interpretation of the QOCS rules given by Edis J in Parker v Butler, and held that the word 'proceedings' in CPR 44.13 included both the first instance proceedings and any subsequent appeal. He said at [29] he did not read Hawksford or Wagenaar as being in conflict. In each case, the word 'proceedings' had to be interpreted to reflect the legislative purpose, and the purpose of QOCS was to facilitate access to justice for those of limited means. Agreeing with Edis J's finding in Parker, he noted that if a claimant's access to justice depends on the availability of QOCS, that access would be significantly reduced if they were exposed to a costs risk on any appeal. He concluded:
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"Any appeal which concerns the outcome of the claim for damages for personal injuries, or the procedure by which such a claim is to be determined, is part of the 'proceedings' under CPR 44.13. This interpretation applies even where; as here, (a) the court is dealing with a second appeal, (b) the appeal is brought by the Defendant to the original claim, and (c) the court has declined to exercise its discretionary powers to limit recoverable costs under CPR 52.19."
The court also considered the applicable regime of costs which should apply to the proceedings. Having started in the Portal, been put into Part 7 proceedings at first instance appeal, then that decision being quashed on second tier appeal, the claim was only ever in law in the Portal throughout. Costs for claims which start in the portal are fixed under SIII of CPR 45. Whilst s51 of the Senior Courts Act 1981 gives the court wide discretion when it comes to costs, this is subject to rules of court. The rules of court on an appeal are those in CPR 52. The Court considered that because first tier portal cases clearly come within the ambit of CPR 51.19(1), (any proceedings in which costs recovery is normally limited or excluded at first instance) it followed that appeals do not. Therefore they awarded open costs on the appeal, but this was subject to QOCS.
Some welcome clarity on the application of QOCS not just to second appeals, but to all appeals where it concerns the outcome of a claim for damages for personal injuries (submissions had been made on the recent 'mixedQOCS case' of Brown v Commissioner of Police of the Metropolis & Anor [2019] EWCA Civ 1724, although not specifically referred to in the judgment.)
It is unclear how where, as here, a case starts and ends in the Portal and therefore is subject to SIII of CPR 45, that it follows because a first instance decision falls within the ambit of CPR 52.19(1) that a non-first instance decision does not. This potentially allows argument that interim applications are similarly not subject to fixed Portal costs but should be payable on an 'open' basis. As noted in para [11] of the judgment, I warned that departing from the fixed costs regime in SIII of Part 45, would undermine certainty, encourage satellite litigation and parties will invent increasingly ingenious ideas to circumvent the regime.
However, given the finding on QOCS and indeed the pre-judgment settlement it was at least, academic for the parties, the claimant having already secured an even better deal on settlement following the close of submissions.
Sarah Robson was instructed by Keith Bishop of Bakers Solicitors.