Claimant protected by QOCS despite earlier CFA, costs judge rules


the road of money

QOCS issue referred to regional costs judge

A claimant is entitled to the protection of qualified one-way costs shifting (QOCS) even though she signed an earlier conditional fee agreement (CFA) for the same injury under the old rules, a regional costs judge has ruled.

District Judge Phillips, sitting at Cardiff County Court, said Julie Casseldine signed her second CFA after 1 April 2013, and the fact she could no longer recover her success fees or insurance premium from the defendants if she won was an “important consideration”.

DJ Phillips said Master Haworth’s ruling at the Senior Courts Costs Office in Landau v The Big Bus Company and another could be distinguished from the case of Ms Casseldine.

In Landau, Master Haworth applied the transitional provisions set out in CPR 44.17 and 48.2 to deny a claimant the protection of QOCS.

However, DJ Phillips said the Landau case involved two sets of proceedings and two CFAs, but the first set related to substantive proceedings and the second to appeal proceedings.

“In the case before me, proceedings were never commenced in relation to the first CFA, but only the second.

“So far as the first CFA was concerned, it was the solicitors (Thompsons) who terminated the CFA, and therefore had no entitlement to payment of any success fee or costs”.

Cardiff County Court heard in Casseldine v The Diocese of Llandaff Board for Social Responsibility (claim no. 3YU56348) that Julie Casseldine was injured while working as a team leader at a day nursery in the Vale of Glamorgan.

She initially instructed Thompsons, and signed a CFA in March 2012, but this was terminated by the firm in January the following year. In August 2013, she signed a second CFA with SRB Solicitors.

Proceedings were issued in December 2013, but were dismissed the following December. The issue of whether QOCs applied to the defendant’s costs was referred to the regional costs judge in Cardiff.

DJ Phillips said the parties agreed that CPR 44.17 was relevant and that the first CFA came “within the definition of” a pre-commencement funding arrangement.

Counsel for the defendant argued that if the court applied the conclusion reached by Master Haworth in Landau then it would be “clear in this case” that the claimant had entered into a pre-commencement funding agreement and would not be able to rely on QOCS.

However, DJ Phillips said Master Haworth concluded that “the word ‘proceedings’ must be decided in the context in which the words appear” and could have different meanings in different situations.

Counsel for the claimant argued that abolition of recoverability of success fees and ATE insurance premiums on 1 April 2013 was a “quid pro quo” for the introduction of QOCS.

He said that as Thompsons had terminated the first CFA, there was no contractual entitlement to any success fee or payment of costs at all.

DJ Phillips said he preferred the claimant’s arguments and ruled that Ms Casseldine had not entered into a pre-commencement funding agreement as defined by CPR 48.2, and was protected by QOCS.

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