The High Court has rejected a challenge to the Ministry of Justice’s (MoJ) failure to extend qualified one-way costs shifting (QOCS) to discrimination claims in the county court.
Mr Justice Cavanagh found  that the MoJ was actively considering extending QOCS beyond personal injury, meaning that the judicial review over last year’s post-implementation review  (PIR) of part 2 of LASPO failed.
Esther Leighton, a wheelchair-using campaigner  who brings claims to improve disabled people’s access to premises, argued that the PIR represented the MoJ’s final decision not to extend QOCS.
The judge accepted that the current costs regime for discrimination claims in the county court, with the risk of having to pay costs if unsuccessful, “has acted as a real deterrent for the claimant in bringing claims, and she is now unwilling to take the risk of bringing claims to enforce her rights”.
He noted though that QOCS would not solve the problem of finding solicitors to take on cases of this nature, given that damages were low and would likely not cover their success fees.
But crucially Cavanagh J accepted too the MoJ’s argument that it has not yet taken a decision on whether to extend some type of costs protection – not necessarily QOCS – to discrimination claims.
The PIR said: “In terms of any potential extension of costs protection there are clear attractions for claimants and their lawyers in being able to litigate at no or reduced costs risk.
“However, there is also a clear risk that by extending costs protection some of the benefits of the part 2 reforms would be undermined: the shifting of costs back to defendants, an overall increase in costs and the potential for prolonging rather than settling litigation. The government would wish to be satisfied that these risks have been addressed before considering the case for extending costs protection further.
“As has been stated, the control of civil litigation costs (and funding) is an ongoing process so the issues raised in this process have been noted and will be kept under review.”
Evidence from Robert Wright, the MoJ’s head of civil litigation funding and costs, was that only four of the 155 responses to the part 2 PIR primarily focused on discrimination claims, which did not provide officials with sufficient information to form a view.
But, despite this, he said there has been work done developing a pilot of costs protection for non-damages disability claims, which had been shown to ministers. This would likely be a two-year pilot involving costs-capping.
The pace had “slowed recently because of this judicial review claim and because resources are limited”, Mr Wright told the court.
He said that, in light of the lack of available evidence, officials may decide to hold a call for evidence, to investigate further if damages claims were problematic too, while no decision has yet been made as to whether the pilot should cover only disability cases, or all county court discrimination cases.
Cavanagh J recorded: “Whether this happens or not, there is likely to be consultation and/or consideration of whether more evidence/data is required, before ministers take a decision whether to extend costs protection to discrimination claims…
“Mr Wright said that the timing of this is uncertain. If ministers decide to consult, the MoJ hopes that this would be in early 2020 (the witness statement was written in October 2019, so this may well have slipped).
“It would take six to nine months before a pilot can begin, because the rules would first have to be agreed with the Civil Procedure Rules Committee.”
This evidence meant the judge did not accept the claimant’s submission that the PIR contained a decision not to extend QOCS to discrimination claims.
He added: “This process is continuing. It is fair to say that it has not got very far yet, but that is explicable on the ground that this issue gives rise to very difficult questions of social policy, and hard information is difficult to come by. The MoJ and the defendant [the Lord Chancellor] need to explore their way carefully.”
However, the judge went on: “I do not exclude the possibility that the time may come, at some point in the future, when inaction on the part of the defendant might amount to a de facto decision that QOCS should not be extended to discrimination cases…
“If the MoJ decides instead to do nothing [about running the pilot] and, to use the old cliché, to kick the issue into the long grass, a point may be reached, in my judgment, when the practical reality would be that the defendant had taken a definite decision not to extend QOCS to discrimination cases. However, that point has not been reached yet.”
With the pilot under consideration, the judge held that the MoJ had not failed to comply with the public sector equality duty – there was no requirement for it to make a decision by the date of the PIR – while the lack of sufficient information to inform a properly reasoned decision meant it could not be said the MoJ had acted irrationally.
In any case, Cavanagh J said he was “not in a position to conclude at this stage” that it would be irrational for the MoJ not to extend QOCS: “There are, at least potentially, a number of arguments in favour of refraining from extending QOCS to discrimination cases.”
He went on to reject submissions that the current costs regime breached the claimant’s article 6 fair trial right or her common law right of access to a court.
“On the basis of the limited evidence available, and applying the appropriate legal test, the costs regime is a proportionate means of achieving a legitimate aim.”
The judge said the same for the difference in treatment between personal injury and other claimants.
He also rejected similar arguments based on the UN Convention on the Rights of Persons with Disabilities, which were made by charity Inclusion London, which intervened in the case.