Qualified one-way costs shifting (QOCS) does not apply on appeal if it did not apply at first instance, Master Haworth has ruled in the Senior Court Costs Office.
Under transitional provisions, QOCS is retrospective save where CPR 44.17 applies. This reads: “This section does not apply to proceedings where the claimant has entered into a pre-commencement funding arrangement (as defined in rule 48.2).”
In Landau v The Big Bus Company and another, the claimant signed a conditional fee agreement (CFA) in August 2011 to bring a personal injury claim against the defendants over an accident in 2009. This was rejected by the High Court in October 2013. Permission to appeal was granted and a second CFA entered into in November 2013, but in August this year, the Court of Appeal dismissed the appeal.
The appeal court referred to the SCCO the question of whether the costs orders made against the claimant in respect of each defendant were subject to QOCS. Master Haworth ruled that they were not.
He examined the wording of rule 48.2(1)(i)(aa), which applies to “[an] agreement… entered into before 1 April 2013 specifically for the purposes of the provision… of advocacy or litigation services in relation to the matter that is the subject of the proceedings in which the costs order is to be made”.
Favouring the submissions by the second defendant’s barrister, Jamie Carpenter of Hailsham Chambers, the master said: “It was clearly Parliament’s intention that a pre-commencement CFA entered into in respect of the ‘matter’ would disapply QOCS in any ‘proceedings’ arising out of that matter.” The rule could easily have been formulated in a different way if this was not the intention, he said.
In case he was wrong on that, Master Haworth went on to rule that an appeal does not constitute separate ‘proceedings’ in the context of section 2 of part 44.
The master expressed sympathy with the claimant’s predicament, as he did not have ATE insurance for the appeal, but said that “whilst it may be unreasonable, unfair and inconvenient to deny the claimant the benefit of QOCS in this case, for the reasons given on a true construction of the relevant provisions of CPR in this case, QOCS does not apply”.
Robert Marven of 4 New Square acted for the other defendant.