QOCS continued

The decision of the Court of Appeal in Cartwright v Venduct Engineering Limited [2018] EWCA Civ 1654 has been widely reported. The case has already been the subject of considerable comment by the legal press and other commentators: a sample of which can be found below:

https://www.bevanbrittan.com/insights/articles/2018/cartwright-v-venduct-engineering-limited/

https://plexuslaw.co.uk/cartwright-v-venduct-engineering-limited-2018-civ-1654/

https://www.bc-legal.co.uk/bcdn/609-239-qocs-protected-claimant-damages-at-risk-in-frivolous-pi-claim-cartwright-v-venduct-engineering-limited-2018-ewca-civ-1654

https://www.dacbeachcroft.com/en/gb/articles/2018/july/court-of-appeal-clarifies-recovery-of-costs-as-exception-to-qocs/

https://www.blmlaw.com/news/setting-the-8216-cartwright-exception-8217-

I think the case and in particular the guidance given by the Court of Appeal is starting to have repercussions in terms of the approach taken by the parties to case management, and the obtaining of expert evidence.

In terms of strategy, it now follows that in cases concerning conditions such as HAVS/VWF or NIHL, which are divisible injuries where the liability of a tortfeasor is several, and not joint and several, great care must be taken to identify those tortfeasors against whom there is a viable case, before the issue of proceedings, in case a claim must proceed to trial against multiple defendants.

Otherwise should a case proceed to trial, where judgment is obtained against one or more defendants for damages, and the claims against other defendants are dismissed with costs orders in favour of those defendants against the claimant, the claimant is likely to find his damages dissipated by the adverse costs liabilities. It can be readily acknowledged that few industrial disease claims go to trial, and fewer still against multiple defendants, but at the outset of a matter, it will be by no means apparent in any case, how things will pan out further down the line.

This in turn means that solicitors acting for claimants will have to consider obtaining expert engineering evidence before the issue of proceedings, in order to identify which defendants should be pursued with a proper prospect of success. There is scope for this approach in the current protocol, which provides as follows in paragraph 9.2:

The civil justice reforms and the Civil Procedure Rules encourage economy in the use of experts and a less adversarial expert culture. It is recognised that in disease claims, the parties and their advisers will require flexibility in their approach to expert evidence. Decisions on whether experts might be instructed jointly, and on whether reports might be disclosed sequentially or by exchange, should rest with the parties and their advisers. Sharing expert evidence may be appropriate on various issues including those relating to the value of the claim. However, this protocol does not attempt to be prescriptive on issues in relation to expert evidence.

This is because it may not be enough for a claimant to instruct his solicitor that the workplace was “noisy” or even that he has suffered a hearing loss, which might arise from a variety of causes. It is not enough to have “white fingers” as circulatory problems can arise unconnected to exposure to vibration.

Instead it may be thought that it is necessary to be able to establish that the relevant dosages of noise or vibration in breach of duties owed to the claimant were present through expert engineering evidence, in much the same way that expert evidence is required to establish a claim for professional negligence.

This will undoubtedly have costs consequences. It will mean that claimants may need to incur a substantial disbursements liability earlier than they might have done, that they will need to source insurance to defray any potential liability for those disbursements, and the costs of settling claims may therefore rise in turn.

In other news, QOCS continues to cause trouble for litigants and the courts. In the case of The Commissioner of Police of the Metropolis v Brown [2018] EWHC 2471 (QB) Whipple J seems to have proceeded on the basis of the curious premise that set off of costs against costs, is not possible in a QOCS case:

14. The Judge was subsequently invited to rule on costs, on the assumption that he was wrong about QOCS protection and that the exception did apply (it appears that this followed the order of Warby J dated 15 November 2017 granting permission, but staying the appeal until after the determination of whether there should be a Defendant’s costs order, which he considered necessary in advance of the appeal to ensure the appeal was not academic). By order dated 22 January 2018, the Judge ordered the Met and the GMP to pay 70% of Ms Brown’s costs up to the date of their respective Part 36 offers; thereafter, he ordered Ms Brown to pay the costs of each of the Met and the GM.

The Learned judge noted:

15. As matters stand, the Police will be able to enforce the costs orders in their favour only to the extent of the award. The Police will not be able to set off the costs owed by Ms Brown to them against costs owed by them to Ms Brown; the costs owed by them to Ms Brown will still have to be paid. The Police will not be able to pursue Ms Brown personally for any costs due to them. The Police will be substantially out of pocket.

Set off is permissible of costs against costs under rule 44.12 CPR. But set off does not constitute the enforcement of a costs award, but is an anterior step to enforcement  so the bar on enforcement contained in rule 44.14 CPR could be viewed to be simply irrelevant. Surprisingly her judgment simply does not refer to rule 44.12 CPR at all.

Circuit judges have also been ready to roll up their sleeves and muddy the QOCS pool. In an interesting decision (albeit only on an application for PTA) Judge Freedman decided that the scope of QOCS protection extended even to defendants who had made a counterclaim: not just the costs of the counterclaim, but the costs of the claim too, on the basis that they were part of the same proceedings: Ketchion v McEwan HH Judge Freedman County Court at Newcastle 28th June 2018.

This case was politely distinguished by Judge Venn this month: Waring v McDonnell – HHJ Venn County Court at Brighton 6th November 2018 who basing herself on the flexibility of the concept of “proceedings”, a purposive interpretation of the QOCS provisions, and consideration of the Medway Oil principle, reached the opposite conclusion.

There are still many more points of principle to be determined in the QOCS scheme, and I have no doubt I will return to them in the months to come.

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