A failure to pay a trial fee can result in qualified one-way costs shifting (QOCS) being disapplied on strike-out, a judge has ruled.
The decision of Deputy District Judge Veysey at Portsmouth County Court in Bruce and Bruce-Daly v Thomas Cook Tour Operations could have implications for claims brought by litigants in person next year under the new personal injury small claims regime.
According to a blog by barrister Dominique Smith of 1 Chancery Lane, who acted in the case, the claimants went on a Thomas Cook package holiday to Fuerteventura, Spain, for 14 nights in January 2015.
Each claimant alleged that they suffered gastroenteritis and brought proceedings for breach of contract for alleged food poisoning suffered during their package holiday, contrary to the Package Travel Regulations 1992.
In September 2018, the claimants’ solicitor made an application to come off the record. From that point onwards, the claimants failed to comply with the order made upon allocation.
In December 2018, the defendant applied to have the claim struck out for failure to comply with the court’s order upon allocation.
However, the hearing was adjourned after it emerged that the court had served the application notice on the claimants’ former solicitor.
It was mentioned during the course of that hearing that the claimants believed that, when their solicitor came off the record, the claim would simply come to an end.
The claimants were later correctly served with the application notice, as well as the notice of hearing. The claimants further failed to file witness statements.
The claim was later struck out without a hearing prior to the adjourned strike-out application, as the claimants had failed to pay the trial fee.
However, the order made by the judge did not expressly state his reasons for doing so, and the defendant submitted that, under CPR 44.15(c)(i), its costs should be enforced and QOCS disapplied on the basis that the conduct of the claimants generally, including the non-payment of the trial fee, had obstructed the just disposal of proceedings.
DDJ Veysey agreed. Further, he noted, the allocation order specifically noted that, if the claimants failed to pay the trial fee, the defendant could receive its costs.
The judge disapplied QOCS and awarded the defendant its full costs.
A briefing from Jonathan Shaw, who heads the Manchester costs team at Clyde & Co, said: “This claim shows the importance of considering what exactly is stated in an order following the striking out of a claim.
“The defendant was able to present arguments that QOCS should be disapplied because the judge had left the door open for further arguments to be made in his order.
“The decision is also of interest as litigants-in-person are expected to increase in number following the whiplash reforms.
“It is possible that those claims exceeding the small claims track limit, where litigants-in-person miss deadlines and fail to pay fees, may increase.
“Defendant representatives will therefore be interested to note those opportunities to disapply QOCS where a claimant’s conduct fall short of what is acceptable.”