26 May 2016Print This Post

QOCS protection extends to appeals, High Court rules

RCJ

Edis J: access to justice reduced if appeals not covered

Qualified one-way costs shifting (QOCS) applies not only to trials but to appeals, the High Court has ruled.

In the first decision on the issue, Mr Justice Edis said claimants’ access to justice would be “significantly reduced” if they were exposed to the risk of costs of an unsuccessful appeal.

“The risk that a failure in litigation may result in the loss of existing assets is a substantial inhibition on access to justice and that is an important part of the reason why QOCS was established.”

Edis J said: “This is a small case in value terms, but the issue may apply equally to very substantial claims and appears to be undecided.

“There are some decisions of the Court of Appeal Civil Division which may provide assistance by analogy, but I have not been referred to any case directly on the point.”

Delivering judgment in Parker v Butler [2016] EWHC 1251 (QB), Mr Justice Edis said: “The power to make enforceable orders for costs is designed to compensate successful parties for their expense in bringing or resisting claims, but it also has an effect of deterring people from bringing or resisting claims unsuccessfully.

“It is an incentive to resolve disputes and serves a public as well as a private interest. That consideration is in tension with access to justice.

“In appellate civil proceedings in QOCS cases permission to appeal is always required. That filter affords some protection for the civil justice system and the other parties against unmeritorious appeals.”

Edis J said he dismissed the claimant’s appeal on the substantive dispute earlier this month after Judge Pemberton at Hull County Court rejected his fast-track RTA claim in 2013.

The judge said he assessed the costs of the claimant’s failed appeal summarily at just under £2,800 in favour of the defendant.

Edis J said that under CPR 44.13, QOCS applies to “proceedings which include a claim for damages” for personal injuries.

He said the issue was “whether the appeal is part of the proceedings which include a claim for damages for personal injuries or whether it is separate from them and thus not subject to the regime”.

Distinguishing the case before him from previous “analogous” decisions, which touched on the subject, Edis J said there was “no difference” between the parties or the relief sought.

“Most importantly, to my mind there is no difference between the nature of the claimant at trial and the appellant on appeal. He is the same person, and the QOCS regime exists for his benefit as the best way to protect his access to justice to pursue a personal injury claim.

“To construe the word ‘proceedings’ as excluding an appeal which was necessary if he were to succeed in establishing the claim which had earlier attracted costs protection would do nothing to serve the purpose of the QOCS regime.”

Mr Justice Edis ruled that, as a result of QOCS, the costs order he made against the claimant, following the appeal, “will not be enforceable”.

By Nick Hilborne

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