An unsuccessful defendant in a road traffic claim for financial losses who made an unsuccessful counterclaim for personal injury (PI) was entitled to the protection of qualified one-way costs shifting (QOCS) for the whole case, a circuit judge has ruled.
His Honour Judge Freedman in Newcastle found that July’s Court of Appeal ruling on QOCS in Cartwright v Venduct Engineering Ltd left him with no other option.
In Ketchion v McEwan, the claimant sued for financial losses arising from a road traffic accident but no PI claim. The defendant denied liability and brought a part 20 claim for PI damages.
The claimant succeeded at trial, being awarded £7,674, and the counterclaim was dismissed.
Deputy District Judge Thorn concluded that the claimant was entitled only to fixed costs and that the defendant was in any case protected by QOCS.
CPR 44.13(1) provides: “(1) This section applies to proceedings which include a claim for damages – (a) for personal injuries… (2) In this section ‘claimant’ means a person bringing a claim to which this Section applies… and includes a person making a counterclaim or an additional claim.”
DDJ Thorn concluded that the reference to “proceedings” in rule 44.13(1) must be taken to refer to the whole of the proceedings, including the claim and the part 20 claim, as subsection (2) specifically stated that a claimant included a person bringing a counterclaim.
Whilst acknowledging the argument that it may not have been intended that QOCS should apply in the circumstances like this, he felt constrained to find that QOCS gave the defendant protection in costs.
The Court of Appeal in Cartwright ruled that a successful co-defendant in a QOCS case may seek to enforce a costs award made against an unsuccessful co-defendant.
HHJ Freedman said the court had given a “wide meaning” to the word “proceedings” and that its 2014 ruling in Wagenaar did not permit a claim brought against six defendants to be interpreted as six separate sets of proceedings, as opposed to a single set.
This meant that is was no longer even arguable that a claim and part 20 claim could be seen as two sets of proceedings, which the judge said he had considered possible before Cartwright.
“Accordingly, I accept the submission, without hesitation, that it would be patently absurd and illogical if the word ‘proceedings’ is deemed to cover all of the claims brought against six separate defendants, but not a claim and part 20 claim, both of which arise out of the same accident and are joined in one action.
“Whilst, on one view, it may seem unjust that the defendant can avoid payment of costs in the main action, purely as a result of bringing part 20 proceedings for damages for personal injuries, it seems to me that that is an inevitable result of the wording of CPR44.13 and 44.14…
“If the intention was to limit a part 20 claimant’s protection in costs, such would have been expressly set out in the rules.”
This meant the defendant had the protection of QOCS and he rejected the submission that to interpret the provisions in this way would encourage spurious or hopeless PI claims.
He agreed with the defendant’s counsel, Andrew Lyons of Ropewalk Chambers, who argued that if a claim was totally devoid of merit or was being used as a vehicle in order to give a defendant QOCS protection, “then the part 20 claim would be struck out as being an abuse of a process or disclosing no reasonable grounds”.
Mr Lyons was instructed by Shakespeare Martineau. Morgan Brien of Trinity Chambers in Middlesbrough represented the claimant.
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