Rule committee should look at gap in QOCS exception, says High Court judge

Lavender: no abuse of process

The Civil Procedure Rule Committee may need to address a hole in the exception from qualified one-way costs-shifting (QOCS) that meant defendants in a personal injury claim could not seek their costs because service of the claim had been set aside, rather than struck out, a High Court judge has ruled.

Shaw v Medtronic Corevalve LLC & Ors [2017] EWHC 1397 (QB) concerned an action being brought by the daughter of a man who died following an operation in which a heart valve was implanted.

Having previously settled with the hospital, she was now suing the manufacturer of the valve.

In January, Mr Justice Lavender set aside both Master McCloud’s order giving leave to serve the claim form out of the jurisdiction on the first and third defendants, and the service of the claim form on the first and third defendants out of the jurisdiction. He also struck out the particulars of claim in relation to the fourth defendant.

Subsequently, the claimant discontinued her claim against the fifth defendant.

The first, third and fifth defendants applied for orders that would allow them to enforce any costs orders made in their favour notwithstanding QOCS.

CPR 44.15.1(a) provides that claimants do not have QOCS protection where the proceedings have been struck out because the claimant has disclosed no reasonable grounds for bringing them. This meant the fourth defendant could have its costs.

Lavender J said: “In relation to the first and third defendants, I have held that the claimant has disclosed no reasonable grounds for bringing the proceedings. If the claim form had been served on them within the jurisdiction, I would have struck it out, but, because it was served on them outside the jurisdiction, the appropriate relief was to set aside service…

“I have not struck out the proceedings against the fifth defendant, because the claimant has discontinued them.

“The Civil Procedure Rule Committee may care to reconsider the scope of CPR 44.15.1(a), but as presently drafted it does not apply to the first, third and fifth defendants.”

The fifth defendant sought an order setting aside the notice of discontinuance, so that the judge could then strike out the proceedings and bring them within the scope of rule 44.15.1(a).

Lavender J said: “I am not persuaded that it would be appropriate to do this. Prima facie, the claimant had a right to discontinue under CPR rule 38.2. It was a proper use of that power, and to be encouraged, for the claimant to recognise, in the light of the first judgment, that her claim against the fifth defendant was not sustainable and to discontinue that claim.

“The court has power under CPR rule 38.4 to set aside a notice of discontinuance. That paragraph does not identify the circumstances in which the power should be exercised. The only guidance on that point in paragraph 38.4.1 of the White Book is to be found in two cases which are cited for the proposition that a court may set aside a notice of discontinuance as an abuse of the process of the court, but there was no abuse of process in the present case.”

Counsel for the defendants submitted that the claimant was trying to avoid the QOCS exception by serving notice of discontinuance.

But the judge said the fact that she was appealing his ruling in relation to the other defendants meant “the possibility that the claimant has simply recognised, in the light of the first judgment, that the claim against the fifth defendant will not stand remains a real one.

“That is perhaps a realisation which should have occurred to the claimant earlier, but it does not, in those circumstances, strike me that this is a case of abuse of process or anything sufficient to justify setting aside the notice of discontinuance.”

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