QOCS rule to change but not in relation to Tomlin orders


Coulson: Ruling leads to rule change

An urgently needed amendment to the rules on qualified one-way costs shifting (QOCS) in so-called mixed claims will come into force in the coming weeks, the Civil Procedure Rule Committee (CPRC) has decided.

It is one of several notable changes in the 113th update to the CPR, mostly taking effect on 6 April – but the CPRC has decided there will not be any change to QOCS arising from the Court of Appeal’s 2018 ruling in Cartwright v Venduct.

In his ruling last October in Brown v Commissioner of Police of the Metropolis, CPRC chair Lord Justice Coulson held that the fact QOCS was available for the personal injury (PI) claim would be “the starting point, and possibly the finishing point too, of any exercise of the judge’s discretion on costs” in claims that have both a PI and non-PI element.

He continued: “If (unlike the present case) the proceedings can be fairly described in the round as a personal injury case, then, unless there are exceptional features of the non-personal injury claims (such as gross exaggeration of the alternative car hire claim, or something similar), I would expect the judge deciding costs to endeavour to achieve a ‘cost neutral’ result through the exercise of discretion…

“I consider it likely that, in most mixed claims of the type that I have described, QOCS protection will – in one way or another – continue to apply.”

It followed, Coulson LJ continued, that to the extent paragraph 12.6 of practice direction 44 suggested a different approach, “I consider it to be wrong. It needs to be amended as soon as possible”.

The lacuna sub-committee took this up and its proposed PD amendment was approved at the CPRC’s December meeting, whose minutes have just been released.

As a result, the words “In proceedings to which rule 44.16 applies” in paragraph 12.6 will be replaced with: “In a case to which rule 44.16(1) or 44.16(2)(a) applies.”

Further, as previously reported on Litigation Futures, CPR 52.22(1) on appeals is being amended to make it clear that the court may have a hearing of both substantive issues and costs issues and that in such circumstances the usual restrictions on informing the court of a part 36 offer is removed.

Other changes to the CPR include:

  • Amending the required wording of the statement of truth to include a warning that proceedings for contempt of court may be brought against those who give a statement of truth without an honest belief in its truth;
  • In cases where a witness statement is presented in English but, notwithstanding signature of the statement, the witness cannot speak English and the statement is not necessarily in their own words, the translator must sign the original statement and the original translation, and must certify that it is accurate;
  • Allowing court staff who are chartered legal executives to be authorised to perform certain functions of the court, in line with the Courts & Tribunals (Judiciary and Functions of Staff) Act 2019;
  • Extending the electronic working pilot scheme (PD51O) for a year to April 2021; and
  • Restoring the general principle that the destination of an appeal is governed by the rank of judge who dealt with the case at first instance, and removing the restriction limiting the class of judge able to deal with directions and applications to those able to hear the appeal.

However, the CPRC has decided not to amend the rules on QOCS and Tomlin orders following Cartwright v Venduct, another case where Coulson LJ gave the main ruling

The Court of Appeal held that QOCS did not prevent a successful defendant in a multi-defendant claim recovering their costs from the damages awarded against a different defendant, but said this right could not be enforced where the damages were payable under a Tomlin order, as it was not a direct order of the court.

The lacuna sub-committee told the December CPRC meeting that the Court of Appeal’s construction of the rule was “logical” and a claimant who was successful against one defendant, but failed against another, could always seek a Bullock or Sanderson order – although it was noted that further questions could arise if a claimant chose to sue different defendants in different sets of proceedings.

The minutes of the meeting said: “Overall, it is a matter of freedom of contract for parties to decide how to deal with compromises and whether to incorporate them in judgments or (as a Tomlin order is) mere contractual agreements.

“To extend CPR 44.14(1) to Tomlin orders would lead to questions as to whether CPR 44.14(1) should apply to pre-action settlement agreements.”

Questions may arise if a Tomlin order was not complied with and the claimant then obtained a judgment by way of enforcement. But as the ‘mixed recoveries’ point would still apply, “this scenario seems unlikely, and in any event, the [sub-committee’s] deliberations concluded with the view that it was better left for the courts to decide”.

The CPRC supported the sub-committee’s recommendation not to make any changes to the rules.




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