Tag: #clarioncosts

Gifting – New guidance issued by the Office of the Public Guardian

Tanya ForanLeave a comment

The Office of the Public Guardian have this month issued updated guidance on gifting for both Deputies and Attorneys on behalf of P.

Both Deputies and Attorneys must follow stricter protocols when giving gifts on behalf of P. The gifts must coincide with past habits and financial means and need to comply with the MCA 2005. Approval must be sought from the Court of Protection when making gifts, with the exception of small customary amounts such as for birthdays, holidays and other similar events.

It is necessary to ensure that when making gifts, the Deputy or Attorney are acting in P’s best interests given their wishes, feelings and financial position. Also, a sufficient paper trail should be kept to explain how the decision was arrived at and what factors were taken into account.

The Deputy or Attorney must consider whether P has:

  • The capacity to understand the decision to make a gift;
  • Whether P is able to take part in the decision making process.

What cannot be given as a gift:

  • A loan
  • Making a large gift
  • Creating a trust over P’s property
  • Living rent free in a property owned by P
  • Selling a property for less than its value or transferring property into another name
  • Changing a Will by a deed of variation
  • Maintaining and support another person
  • Removing cash assets to reduce P’s estate

Exceptions include gifts given to friends and family on customary occasions such as birthdays, weddings and religious celebrations, gifts that were previously given either to a person or charity and must be of reasonable value, taking into account the circumstances and the size of P’s estate.

What is deemed as a reasonable gift?

Various factors must be taken into account including:

  • The impact of the gift on P’s estate;
    • Whether making the gift is in P’s best interests; and
    • The current and future needs of P.

A best interests decision should be made and properly recorded including details of all other issues taken into account. These include P’s previous habits, how the gift may affect an inheritance and the payment of inheritance tax. P’s life expectancy should be considered together with P’s future financial position and the relationship between P and the person receiving the gift also, importantly P’s wishes and feelings, taking into account any previous Wills prepared.

For the full guidance please click on the link giving-gifts-guidance.pdf (publishing.service.gov.uk)

If you have any questions on the information above or have any general queries with regard to seeking costs, please contact me at Tanya.Foran@clarionsolicitors.com.

Fixed Costs Determination Process: An overview and points of discussion

Daniel MurrayLeave a comment

The Fixed Costs Determination process (FCD), which was proposed within Lord Justice Jackson’s infamous review of civil litigation costs in 2017, is to be finally implemented on 1 October this year. 1 year on from the implementation of his other expansive recommendations and the extension of the Fixed Recoverable Costs regime.

There was initially some optimism within the legal costs world, that the process would not be implemented when it was omitted from the new rules. However, minutes from the CPRC meetings, released over the last 10 months or so, revealed an intention to implement the new streamlined process this year.

The procedure for the new process, which will be incorporated into CPR 45.63 to CPR 45.66 has been published in Civil Procedure (Amendment No.3) Rules 2024 and 171st update – Practice Directions amendments. The new Precedent U, which will be completed by receiving parties as part of the process has also been released for review.

How does the process operate?

Determination after a hearing

The new process will require any party who intends to claim any fixed costs or disbursements in a case captured by CPR 45, to file at court and serve on any party against whom an order for payment is intended to be sought a completed Precedent U. This new document must include, if applicable, the details of any claim under rule 45.9, rule 45.10 or rule 45.13, and is to be filed and served no later than 24 hours before the time fixed for the hearing. This is a slight variation on the current rules in relation to final hearings, where statements must be filed at Court 48 hours prior to the hearing commencing.

The Court may then summarily assess the costs, or if it is unable to make a summary determination at the hearing, then it may order a determination on paper, or a further hearing and make any directions it sees fit. The costs of that determination will be treated as an interim application and costs limited under CPR 45.8. Those costs currently amount to £250 plus VAT on cases which are assigned to bands 1-3 of the Fast Track, and £333 plus VAT on cases which are assigned to band 4 of the Fast Track or allocated to the Intermediate Track.

Determination where parties agree on all issues except costs

Where the parties have reached agreement on all issues except costs, then the receiving party may make an application for those costs to be determined under the new streamlined process. On an issued matter, this will be by way of a Part 23 application as is the current procedure when a fixed costs dispute arises.

On an unissued matter, the application will be made when Part 8 costs only proceedings are commenced pursuant to CPR 46.14.

Applications, whether on issued or unissued matters, should be supported by the written agreement or confirmation, together with a completed Precedent U containing details of the costs or disbursements to which the applicant claims to be entitled and, if applicable, the details of any claim under rule 45.9 (a claim for costs exceeding fixed costs as a result of exceptional circumstances), rule 45.10 (a claim for costs exceeding fixed costs as a result of vulnerability of the Claimant or a witness), or rule 45.13 a claim for costs exceeding fixed costs as a result of unreasonable behaviour).

Any evidence in response from the paying party must be filed within 21 days of service of the application on issued matters, and within 21 days of filing the acknowledgment of service where proceedings have not been started.

The determination may then take place on papers or at a final hearing, but regardless, the fees recoverable will be limited to £500 plus VAT as set out in Table 17 of the soon to be amended Practice Direction 45, plus any relevant application fees.

Appealing outcomes

The Court will record its decision by annotating the Precedent U document and the parties will have 21 days from service of the decision to appeal the outcome. If an application is made, then a hearing will be held to determine the issues, and the applicant must achieve an outcome at least 20% more favourable to them, otherwise they will be liable for the costs of and incidental to the hearing. These costs will, however, be limited again to those outlined in CPR 45.8.

Final key points

Where a party seeks an assessment of costs because of exceptional circumstances, vulnerability, or where the matter settles at S.1 on the Intermediate Track and is a non-PI matter, then the Court has the power to give directions that those costs can be assessed in conjunction with the fixed costs determination.

Part 36 consequences are disapplied from the process.

Discussion

Those of us involved in fixed costs dispute know that currently, the process can be a drawn out, expensive and disproportionate exercise. A streamlined process, designed specifically to deal with what is likely to be largely disbursement disputes is to be welcomed.

It is interesting that the base figure allowed for the process (a maximum of £500), has not been uplifted for inflation, in the same way that those costs tables were. When fees are broken down into hours, the process allows for less than 4 hours of Grade D band 2 time for preparing a statement and written submissions, as well as attempting to agree costs before an application is made. That is not withstanding the fact that submissions in relation to costs exceeding fixed costs can be technically complex and arguably justify the input of more experienced fee earners.

Further limitations on fees recoverable where the Court does not determine costs at the final hearing also seems a harsh added stipulation, with a maximum of £333 recoverable, to include a potential attendance at a hearing.

By disapplying the consequences of Part 36 from the process, there appears to be little by way of incentive for parties to reach agreement. This is exacerbated by the fact that the adverse costs exposure if decisions are unsuccessfully appealed, is limited to less than £400. The provisional assessment process, which currently captures most cases that will proceed through this process after its implementation, removes its cap on recoverable fees when initial outcomes are appealed. A mechanism that operates as a real deterrent for zealous challenges.

As things stand, this new process would not apply to cases to which the fixed costs implemented on 1 October 2023 apply. This seems something which could and perhaps should be rectified prior to the rules coming into effect and requires clarification.

Finally, the interplay between requests for assessment of fees above fixed costs and the new process remain unclear. Whilst it is noted that there is the possibility for both the new process and detailed assessment to run in conjunction, how this will operate is still uncertain.

For further information on the process, or assistance once it is implemented please contact Clarion’s Costs and Litigation Funding Department who can be contacted on any fixed costs issues, at our dedicated fixed costs email address at FRC@clarionsolicitors.com.

QOCS and Fundamental Dishonesty: where are we now?

Katie SpencerLeave a comment

The rules surrounding qualified one-way costs shifting (QOCS) were first introduced in April 2013, with the general rule being that a Claimant who has suffered a personal injury cannot be ordered to pay the costs of a Defendant, even if they lose their claim. QOCS applies in all personal injury claims, apart from when the Claimant is found to be fundamentally dishonest.

Fundamental dishonesty is an argument that can be raised by a Defendant when they believe the Claimant has not been truthful when bringing a claim.

Howlett v Davies [2017] was the first Court of Appeal case where the exception to QOCS was considered, supporting the procedure that should take place when a Claimant has been fundamentally dishonest. In this case, the Claimants alleged that they were passengers in the vehicle at the time of a road traffic accident. However, this was disproven factually as they were found to be lying regarding their presence. The Claimants were found to be fundamentally dishonest within the meaning of CPR 44.16(1) and costs were awarded against the Claimants as an exception.

Changes to the rules on QOCS were introduced on 6 April 2023, applying to any cases issued thereafter.

A main effect this has had relates to Part 36 offers; Part 36 offers now have the added incentive that costs after the 21-day period can be enforced against damages, without an Order from the Court.

It has been over 10 years since the rules on QOCS were introduced and more than a year since the changes were implemented, so where are we now?

In the recent personal injury case of Hamed v Ministry of Justice [2024], the Judge found the Claimant to be dishonest when exaggerating the injuries sustained. Therefore, no damages were awarded and QOCS were disapplied pursuant to the provision of CPR 44.16.

Practice Direction 44, Paragraph 12.4 states:

“In a case to which rule 44.16(1) applies (fundamentally dishonest claims) –

(a) the court will normally direct that issues arising out of an allegation that the claim is fundamentally dishonest be determined at the trial;

(b) where the proceedings have been settled, the court will not, save in exceptional circumstances, order that issues arising out of an allegation that the claim was fundamentally dishonest be determined in those proceedings;

(c) where the claimant has served a notice of discontinuance, the court may direct that issues arising out of an allegation that the claim was fundamentally dishonest be determined notwithstanding that the notice has not been set aside pursuant to rule 38.4;

(d) the court may, as it thinks fair and just, determine the costs attributable to the claim having been found to be fundamentally dishonest.”

 

Different courts are therefore adopting a consistent approach to exceptions to QOCS, despite the rule change of April 2023. The same outcome was drawn in both Howlett v Davies [2017] and Hamed v Ministry of Justice [2024].

Similarly, in the case of Shaw v Wilde [2024], the Defendant raised the argument that the Claimant had been fundamentally dishonest where the Claimant had lied to experts and the Court about the extent of his injuries. It was found that the Claimant should pay the Defendant’s costs due to this dishonesty. Again, CPR 44.16(1) was used to support this decision.

In conclusion, despite the progression of time, the rules surrounding QOCS and Fundamental Dishonesty are applied consistently.

Costs Budgeting Reform Gains Momentum

Anna LockyerLeave a comment

Flexible budgeting recommendations made by the CJC’s report of May last year have been accepted by the Master of the Rolls and more recently discussed at last month’s CPRC meeting.

Key points:

  • A new Precedent H costs form has been proposed, modelled on the existing Precedent H
  • A draft new Practice Direction includes budgeting claims with a value of over £10m
  • A draft pilot Practice Direction provides for 5 categories of case, each limited in certain courts:

– Business & Property Courts (BPC) claims with a value of £1m or more;

– BPC claims with a value of less than £1m;

– Qualified One-Way Costs (QOCS) claims;

– Non-QOCS claims; and

– Certain other non-BPC claims.

It was agreed in principle that each case category may have its own Practice Direction and the implementation dates need not be the same.

Watch this space for further updates…

Will COP hearings continue remotely in a post-Covid world?

Stephanie KayeLeave a comment

Following the announcement on the 10 June 2021 from the President of the Family Division, Sir Andrew McFarlane, a two-week rapid consultation on remote, hybrid and in-person hearings within the family and Court of Protection (COP) systems has taken place and ended on 27 June 2021.

This was the third survey looking into the impact on hearings following the change of location and format. Unlike the previous two, this was a shorter survey and focused questions on which parts of working remotely should be retained, any further issues that occurred and what best actions could be taken to avoid these. Following the relaxation of some lockdown rules, this survey also looked at the experience of attending court in person.

The survey was completed by the Nuffield Family Justice Observatory (NFJO), an independent organisation which is committed to improving life for children and families by putting data and evidence at the heart of family justice system. The NFJO has gathered evidence from families with children and all professionals working in the family justice system, including judges, barristers, solicitors, Cafcass workers, court staff and social workers and the findings of this will be available for the President’s Conference in July.

We will report sooner on the topic as soon as more information is available about in-person hearings in the future.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com

Joshua Sidding is a Paralegal in the Court of Protection Team of the Costs and Litigation Funding Department at Clarion Solicitors. You can contact him at Joshua.sidding@clarionsolicitors.com and 0113 222 3245

Does P have capacity to make decisions as to his care and residence?

Ella WilkinsonLeave a comment

In the recent case of KG (Capacity) [2021] EWCOP 30, it was necessary for the Court to determine whether P had capacity to make decisions as to his future care provisions and where he should reside.

By way of background, P is a 68 year old man, who has been an inpatient at a hospital since April 2016. He has been fit for discharge for around two years, however is very reluctant and resistant to leaving the hospital.

An application was made under S21a Mental Capacity Act (2005) in challenge to the DOLS authorisation in place, and the Court’s input was sought as to whether P had the required capacity to make decisions regarding his residence and care. The local authority and NHS Clinical Commissioning Group were in agreement that P should leave the hospital, and move to a specialist mental health residential placement.  

It was decided that whilst P was able to understand issues surrounding his care and residence, and could articulate objections to the proposals made, he was not able to retain abstract information in respect of his potential care and residence needs in the future, and could not weigh up the information relating to the decisions to be made.

As such, the conclusion was that the Court of Protection would continue to be involved in making best interests plans for P, and that the local authority and NHS Clinical Commissioning Group should continue to investigate options for residential placements for P.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com

OPG v DJN

Stephanie KayeLeave a comment

In this case, the Office of Public Guardian applied to the Court of Protection to revoke a Lasting Power of Attorney that had been made by P, which appointed his son (DN) as his attorney. He subsequently lost capacity and concerns were raised as to whether or not P had the appropriate level of capacity at the time it was prepared. It had been investigated and concerns were raised that DN had not acted in the P’s best interests by selling his residence and transferring the majority of the proceeds to himself and mixing the finances by operating a joint account.

In December 2017, a district judge suspended the operation of the LPA and directed the appointment of an interim deputy. This order was formalised shortly after.

DN contested the substantive application. He maintained that P had capacity at all relevant times and denied any wrongdoing.

At the final hearing on 17 and 18 June 2019, the OPG’s application was dismissed, DN’s attorneyship was restored and the appointment of the interim Deputy was discharged.

DN sought an order for costs of £82,000 and argued that the hostile approach taken by the OPG was wrong. A detailed skeleton argument in support of the point that the OPG had behaved unreasonably in the matter was submitted for the court to justify departing from the normal costs rule.

The OPG rebutted this with arguments that its approach was not hostile but simply fulfilling its duties under s58 MCA 2005 and the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2017.

The Counsel for the OPG stated “In the alternative, if the court concluded that a costs order would leave P with insufficient funds, the court should make no order for costs. This would mean that the Public Guardian would bear his own costs and DN’s costs would be met from the monies he received from P.” Whatever position the court adopted, Ms Rich said that “this was certainly not a case where the Public Guardian should be made to pay the other party’s costs.”

Rule 19.2 of the Court of Protection Rules 2017 states that where proceedings concern P’s property and affairs, that the costs of the proceedings shall be paid by P or charged to P’s estate.

Rule 19.5 provides that: (1) the Court may depart from rules 19.2-19.4 if the circumstances so justify, and in deciding whether departure is justified the court would have regard to all the circumstances including; (a) the conduct of the parties.

The Public Guardian adopted what seemed to be a standard approach to litigation based on his approach to other cases. This was a serious failure especially when rule 1.4 COPR 2017 expects litigants to comply with the overriding objective. This obligation applies equally to the Public Guardian.

The judge concluded that there was good reason to depart from the usual costs rules as a result of the OPG failing to review the capacity evidence appropriately prior to commencing proceedings. Had this been done, the “obvious deficiencies” would have been noted.

Having consideration to the relevant law and the parties’ submissions, the order made was that the Public Guardian was not entitled to be paid his own costs from P’s funds and that he should pay 50% of DN’s costs (which shall include the costs of the appeal hearing) all of which shall be assessed at the Senior Courts Costs Office by a Costs Judge.

If you have any queries please contact Bridie Sanderson at bridie.sanderson@clarionsolicitors.com or 0113 336 3350.

A Complete Chronological guide to budgeting case law

1 Comment

There are many case authorities in relation to budgeting since the process was implemented, it is hard to keep track of them all. Here is a complete list of cases.

 

2014

Appeals

Havenga -v- Gateshead NHS Foundation Trust [2014] EWHC B25(QB)

General guidance

A & B (Court of Protection: Delay & Costs) [2014] EWCOP 8)

Hegglin -v- Persons Unknown & Google Inc [2014] EWHC 3793 (QB)

Thomas Pink Ltd -v-Victoria’s Secret UK Limited [2014]

Yeo-v-Times Newspapers Ltd  [2014] EWHC 2853 (QB)

 

2015

General guidance

BP -v- Cardiff & Vale University Local Health Board [2015] EWHC B13 (Costs)

(GSK Project Management Ltd -v- QPR Holdings Ltd [2015] EWHC 2274 (TCC)

Stocker -v- Stocker [2015] EWHC 1634 (QB))

Tim Yeo MP -v- Times Newspapers Limited [2015] EWHC 209 (QB))

Various Claimants -v- Sir Robert McAlpine & others [2015] EWHC 3543 (QB)

Judicial guidance cases

GSK Project Management Ltd -v- QPR Holdings Ltd [2015] EWHC 2274 (TCC)

Tim Yeo MP -v- Times Newspapers Limited [2015] EWHC 209 (QB)

Late filing of a budget

Simpson -v- MGN Limited [2015] EWHC 126 (QB)

Overspending on the budget

CIP Properties (AIPT) Limited -v- Galliford Try Infrastructure Ltd [2015] EWHC 481 (TCC)

Excelerate Technology Ltd -v- Cumberbatch [2015] EWHC B1 Mercantile)

Parish -v- The Danwood Group Ltd [2015] EWHC 940(QB)

Simpson -v- MGN Limited [2015] EWHC 126 (QB)

Proportionality in budgeting

(BP -v- Cardiff & Vale University Local Health Board [2015] EWHC B13 (Costs)

Various Claimants -v- Sir Robert McAlpine & others [2015] EWHC 3543 (QB)

 

2016

General guidance

Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21

Campbell -v- Campbell [2016] EWHC 2237 (Ch)

Group Seven Limited -v- Nasir [2016] EWHC 629 (Ch)

Merrix -v- Heart of England NHS Foundation Trust [2016] EWHC B28 (QB)

Signia Wealth Limited -v- Marlborough Trust Company Limited [2016] EWHC 2141 (Ch) –

Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21

Late filing of a budget

Jamadar -v- Bradford Teaching Hospitals NHS Trust [2016] EWCA Civ 1001

Murray -v-BAE Systems PLC (Liverpool County Court, 1st April 2016)

Outcome of budgets and costs of assessment

Sony Communications International AB -v- SSH Communications Security Corporation [2016] EWHC 2985 (Pat)

Proportionality in budgeting

(Considers Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21

Group Seven Limited -v- Nasir [2016] EWHC 629 (Ch)

Revising the budget

Warner -v- The Pennine Acute Hospital NHS Trust (Manchester County Court 23rd September 2016)

The budgeting procedure

Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21

Merrix -v- Heart of England NHS Foundation Trust [2016] EWHC B28 (QB)

 

2017

Departing from the budget on detailed assessment

RNB v London Borough of Newham [2017] EWHC B15 (Costs)

General guidance

Harrison -v- University Hospitals Coventry & Warwickshire Hospital NHS Trust [2017]  EWCA Civ 792

MacInnes -v- Gross [2017] EWHC 127 (QB)

Napp Pharmaceutical Holdings Ltd v Dr Reddy’s Laboratories (UK) Ltd & Ors [2017] EWHC 1433 (Pat)

Judicial Guidance cases

Findcharm Ltd -v- Churchill Group Ltd [2017] EWHC 1109 (TCC)

Woodburn v Thomas (Costs budgeting) [2017] EWHC B16 (Costs)

Late filing of a budget

Asghar -v- Bhatti [ 2017] EWHC 1702 (QB)

Mott & Anor v Long & Anor [2017] EWHC 2130 (TCC)

Outcome of budgets and costs of assessment

Harrison -v- University Hospitals Coventry & Warwickshire Hospital NHS Trust [2017] EWCA Civ 792)

Merrix -v- Heart of England NHS Foundation Trust [2017] EWHC 346 (QB)

Part 36 in budgeting

Car Giant Limited -v- the Mayor and Burgesses of the London Borough of Hammersmith [2017] EWHC 197 (TCC)

Proportionality in budgeting

Rezek-Clarke -v- Moorfields Eye Hospital NHS Foundation Trust [2017] EWHC B5 (Costs)

Revising the budget

Asghar -v- Bhatti [2017] EWHC 1702 (QB)

Sharp v Blank & Ors [2017] EWHC 3390 (Ch)

Sir Cliff Richard OBE -v- The BBC & Chief Constable of South Yorkshire Police [2017] EWHC 1666

 

2018

Departing from the budget on detailed assessment

Jallow v Ministry of Defence [2018] EWHC B7 (Costs)

Nash v Ministry of Defence [2018] EWHC B4 (Costs)

General guidance

Yirenki v Ministry of Defence, [2018] 5 Costs LR 1177

 

 

NB, Re (Consent to sex) [2019]- After 27 Years of marriage, did the Protected Party have capacity to marry and consent to sexual relations with her husband?

Stephanie KayeLeave a comment

The Protected Party came to live in the UK in 1985 and married her husband in 1992. The marriage was contracted abroad. When the Protected Party first came to live in the UK she did so without her husband. There was a period in which the couple were separated whilst her husband made an application for permission to enter the UK, but in May 1996, the Protected Party travelled abroad to return to live with her husband. Following a series of applications to the Home Office throughout 1997, the couple came, eventually, to live together in London. They lived with the Protected Party’s parents and a year later their daughter was born.

The question was brought to the Court relating to the Protected Party’s capacity to marry and subsequent capacity to consent to sexual activity.

Mr Justice Hayden reviewed a letter to the Immigration Appeals department, that was brought before him by the Official Solicitor, dated March 1996, in which a clinical psychologist, Ms Suzanne Wilson, stated:

‘I believe Protected Party’s experience of her husband’s absence is stressful due to her attachment and affection towards him which has developed during their periods together. In her daily life the Protected Party consistently demonstrates her intense attachment to her husband. She often says his name with affection. She repeatedly asks where he is and pleads that he should be with her. She appears to understand the lasting nature of marriage, including that of marriage as a committed sexual bond between a man and a woman. It is my view that the Protected Party would be very unlikely to have such an affectionate attachment to her husband if this were not on a mutual basis and I therefore believe that her attachment can be taken as evidence of her husband’s positive attention and caring towards her when they are together’.

It is important to note that the Protected Party suffered from what is referred to as ‘general global learning difficulty’ and ‘an impairment’ in relation to her ability to communicate with others. She has been, at least historically, assisted using Makaton sign language and her sentences were limited.

As a result of a number of remarks the Protected Party made to her dentist, in October 2014, a safeguarding enquiry was instigated. There is no record of what it was that she said to the dentist, but it was clear that it had something to do with the quality of her relationship with her husband and it was such as to give rise to a concern that she might be vulnerable to sexual exploitation. Very quickly, an education programme was put in place focusing on sex education, relationships, contraception, sexually transmitted diseases as well as more general issues relating to Protected Party’s health.

The conclusion of the assessment was that the Protected Party was unable to demonstrate an appreciation of why people got married, separated or divorced. It was concluded that she lacked the mental capacity to marry. In respect of her capacity to consent to sexual relations it was considered that she lacked an understanding of the association between sexual intercourse and pregnancy. Inevitably, it followed, that she could not link various forms of contraception to the concept of averting pregnancy. She did not have the capacity to retain information in relation to these issues. It was also considered that she was unable to communicate the concept of refusal of sex to her husband.

The Protected Party’s husband was a man in his early 50’s who has never been in any trouble with the police. It was agreed that there had been no concerns expressed by any of the professionals in relation to his behaviour either more recently or historically.

The couple found themselves in a challenging situation in which their private and sexual life was being scrutinised by a variety of professionals. Whilst the Protected Party’s husband was being analysed, he appeared both frightened and embarrassed when he came to Court. On 29 March 2019, when the matter was brought to Court there had been an agreement between the Protected Party’s husband, the Applicant and the Respondent that the case would proceed by way of the Protected Party’s husband giving an undertaking to the Court not to sleep with his wife.

Mr Justice Hayden concluded that he was “Reserving Judgment in order that I can take the time to look carefully and in some detail at the case law and its applicability to the facts of this case. It would appear, that it requires to be said, in clear and unambiguous terms that I do so in order to explore fully Protected Party’s right to a sexual life with her husband and he with her, if that is at all possible.”

If you have any queries, please do not hesitate to contact Georgia Clarke (georgia.clarke@clarionsolicitors.com) or the team at COPCosts@clarionsolicitors.com.

Confused by QOCS? A brief summary of everything you need to know…

Joanne ChaseLeave a comment

Qualified One way Costs Shifting (QOCS) was introduced in April 2013 for personal injury matters and it is essentially a rule that means a successful defendant cannot recover their costs from an unsuccessful claimant except in specific circumstances (such as the claim being fundamentally dishonest).

2018 saw 3 decisions of interest; one from the Court of Appeal, and 2 County Court decisions that conflicted each other. It is likely that the issues in the County Court decisions will be tested again, hopefully with binding authority.

Court of Appeal – 28/06/18: Cartwright v Venduct Engineering Limited [2018] EWCA Civ 1654

This was a NIHL (Noise Induced Hearing Loss) claim where the claimant pursued 2 defendants (as is often the case with industrial disease matters).

The claimant successfully negotiated settlement against defendant 1, and dismissed the claim against defendant 2. Defendant 2 argued that their costs (following the discontinued claim) could be enforced against the claimant up to the level of damages recovered from defendant 1. It was argued that the purpose of QOCS was to ensure that the claimant was no worse off after litigation had been conducted than before it had started. The court of appeal agreed – defendant 2 was entitled to their costs, limited to the amount of damages recovered from defendant 1.

This decision confirmed that a claimant was not entitled to QOCS protection when they issued against a defendant (in a multi defendant case where they succeeded against a different defendant) and their claim was ultimately unsuccessful (prior to this decision, the rule had been if no fundamental dishonesty had been proven by a successful defendant, then the claimant would be protected by QOCS in this scenario – the county court decision of Bowman).

The Cartwright decision means that litigators now need to be extremely vigilant when deciding against which defendants to issue their claim. If they do not adequately consider and evaluate the risks against each and every defendant, there is potential for a professional negligence claim.

The second issue decided in Cartwright was whether a successful QOCS defendant could enforce a tomlin order (remembering that a tomlin order is a record of settlement and not an order of the court). The rules state that QOCS applies to orders for costs made against the Claimant and therefore Cartwright found that defendants would not be able to enforce a tomlin order or Part 36 agreement in order to benefit from QOCS on the basis they are not orders made by the court. The order must either have been made at trial, or be within a consent order or provisional damages order.

Ketchion v McEwan – Jun 2018 (County Court decision)

This was an RTA matter where the claimant brought a claim for financial loss (but not personal injury). The defendant denied liability and issued a part 20 counterclaim for personal injury. The matter proceeded to a fast track trial – the judge found the defendant to be 100% at fault and therefore entered judgment and dismissed the counterclaim.

The claimant sought their costs but the judge ordered that the defendant was protected by QOCS (given the existence of his unsuccessful counterclaim). Therefore, despite the claimant succeeding in full, their costs were not recoverable as the defendant had QOCS protection. The claimant sought permission to appeal but this was dismissed – the judge found that the rules referred to “proceedings” and that this captured the claim AND counterclaim. It should not be limited to just the claim – any successful claim could be precluded from recovering costs by an unsuccessful counter claim.

Waring v McDonnell – Nov 2018 (County Court decision)

This was a claim involving 2 cyclists. One brought a claim for personal injury, the other a counterclaim for personal injury. The counterclaim was unsuccessful and the court found that the defendant/Part 20 claimant was not protected by QOCS. This decision was to deter the bringing of frivolous counter claims in order to avoid a costs order/benefit from QOCS. It was found that the defendant was not an unsuccessful claimant, but an unsuccessful defendant and that he would only have been entitled to QOCS protection if he had brought his own PI claim.

So, what’s next? 

It is recognised that there is currently some tension in the drafting of the QOCS rules, and that they need to be re-worded in order to iron out issues.  Currently, the term “proceedings” in Cartwright encompasses multiple defendants, however, in the county court decisions, “proceedings” do not include counterclaims.

There is also an increasing trend in defendants arguing fundamental dishonesty in order to set aside QOCS. There is currently limited authority on what constitutes fundamental dishonesty, however, the Court of Appeal decision of Howlett v Davies & Another [2017] EWCA Civ 1696 concluded that fraud did not have to be pleaded for the Court to make a finding of dishonesty. The defendant merely had to have given adequate warning to the claimant of their intention to submit evidence that could lead to the Court making such a finding, such as within their defence.

Finally, there is talk about extending the QOCS regime to non-clinical professional negligence claims, and also private nuisance proceedings. It, therefore, appears that QOCS is going to expand beyond the realms of personal injury in the not too distant future.

Joanne Chase is a Senior Associate Costs Lawyer in the Costs and Litigation Funding Department at Clarion Solicitors.

You can contact her at joanne.chase@clarionsolicitors.com and 0113 336 3327, or the Clarion Costs Team on 0113 246 0622.