Thick and fast

The last few months have seen an outpouring of legal argument, judgment, analysis and statutory reform on all matters pertinent to Qualified One Way Costs Shifting (QOCS).

Shortly I am going to publish a paper drawing the various strands together, looking at the problems that the reforms will cause and which practitioners should be mindful of. 

In the meantime, if you have not already seen them, two cases in particular are worthy of note. They are Pathan v Commissioner of Police of the Metropolis [2022] EWHC 3244 (KB) and PME v The Scout Association and Bolt Burdon Kemp LLP [2023] EWHC 158 (SCCO)

The case of Pathan included the interesting question of whether a claim which started as a “loss of liberty” claim but was amended to include a personal injury claim, was a claim to which QOCS applied both before and after the date of amendment:

31. Whether or not Achille compels that conclusion, I consider that the meaning of rule 44.13(1) is clear. The QOCS regime, which includes certain layers of judicial discretion, applies if proceedings include a personal injury claim and does not apply if proceedings do not include a personal injury claim. That question, to be asked and answered when the judge considers what if any order to make relating to the enforcement of a costs order, is a binary question, in other words there are only two possible answers, which are “yes” and “no”. In the present case the proceedings included a personal injury claim and so the answer was yes. Moreover, that was indisputably so on the date when the judge made his order, making the position in this case clearer than it was in Achille. The QOCS regime therefore applied to the proceedings. With all due respect to the judge, who gave a careful and detailed judgment on the claim, he fell into error by ruling that QOCS was to be applied only to the proceedings occurring after the amendment.

32. I am not persuaded that the doctrine of “relation back” is relevant. This is not a case of an amendment having retrospective effect. Instead, a choice has been made by the drafters of the CPR about when the enforcement position is automatic and when it is discretionary.

The judge considered that QOCS did so apply, and thus ran like a thread throughout the proceedings, irrespective of the question of when the personal injury claim was raised.

The second case of PME is yet another attempt to circumvent the absolute bar posed by the cases of Cartwright and Adelekun, upon a defendant seeking to enforce a claim to costs, but this time through the route of a non party costs Order against the claimant’s solicitors. I would not say that such an order is impossible to obtain, but cases such as Myatt v The National Coalboard (No 2) illustrate how difficult such an order is to obtain. There must be something more, than a solicitor simply acting as a solicitor within the permitted scheme of the Courts and Legal Services Act 1990, to recover her client’s costs, even if they are to be used to pay her fees and expenses.

Perhaps the real lesson in all of this, is that it illustrates, again, that test cases tend not to work for defendants at least in the field of costs. Far better to lobby the rule makers and obtain statutory intervention to change the rules and principles upon which cases are decided, as demonstrated time and again, in the years since 2013.