Appellants in personal injury claims to benefit from QOCS protection
In what is understood to be the first authority on this point, Edis J has ruled that an appeal concerning a claim for damages for personal injury is part of the ‘proceedings’ as defined by CPR 44.13. Accordingly the qualified one-way costs shifting (‘QOCS’) rules will apply, limiting the potential costs liability of a claimant to the amount of damages awarded (unless certain exceptions apply).
The case of Parker -v- Butler [2016] EWHC 1251 (QB) offers the first authority to clarify this point.
The case arose from a road traffic accident which occurred on 10 April 2013, which had been allocated to the fast track. The Claimant’s claim for personal injuries was dismissed at first instance by HHJ Pemberton on 03 March 2015.
Permission to appeal was granted. Edis J head the appeal; though he accepted the Claimant’s arguments that the reasoning of the trial judge could not be sustained, he was able to determine the issue of liability on the material available to him. He accepted that the claim was properly dismissed, but for different reasons to those given by the trial judge.
It was accepted that the QOCS regime applied to the case, and that therefore the costs order against Claimant following the initial trial was not enforceable without permission pursuant to CPR 44.14. The issue for the Court, however, was whether the costs order made on appeal was subject to the same rule.
Edis J ruled:
‘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… 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.’
This decision provides welcome clarification of the application of the QOCS regime to appellate proceedings. Insurers will need to bear this in mind when faced with appeals from claimants who have been unsuccessful at first instance.
It remains to be seen whether this decision will embolden claimants to pursue appellate proceedings, in the knowledge that they will continue to benefit from QOCS protection. However, as Edis J noted, the fact that an appellate in civil proceedings in QOCS cases will always require permission to appeal will provide a ‘filter [which] affords some protection for the civil justice system and the other parties against unmeritorious appeals’.
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