The Issues

The Claimant had instructed solicitors to deal with a personal injury claim in March 2012 and had entered into a Conditional Fee Agreement at that time supported by an ATE policy. Liability was disputed by the Defendant before the solicitors terminated their CFA on the 30^th January 2013 as they did not believe the claim retained sufficient prospects of success. This had the effect of also terminating the ATE cover pursuant to contractual provisions.

The Claimant subsequently instructed new solicitors and entered into a fresh CFA on the 6^th August 2013, therefore post Jackson. Proceedings were issued in December 2013 and the case came on for trial on the 1^st December 2014 when the claim was dismissed.

The issue of whether or not the Claimant was entitled to the protection offered by QOCS under CPR 41.13 to 44.17 was directed to be determined by the Regional Costs Judge.

Held

This issue came before Regional Costs Judge, District Judge Phillips in the Cardiff County Court. It was held that this case could be distinguished from Landau v The Big Bus Company (31 October 2014, unreported) on the basis that;

1. Proceedings were not commenced under the first (pre Jackson) CFA. The first CFA had been terminated by the Claimant’s first solicitors, thus no success fee or indeed any costs were payable under the first CFA.
2. The proceedings were conducted under the second (post Jackson) CFA and had the Claimant succeeded at trial, the Court would not have been in a position to Order the Defendant to pay any additional liabilities in any event.
3. The transitional provisions at CPR 44.17 and 48.2 must be read in context – CPR 48.2 is directed squarely at recoverability.
4. The purpose of the rules was to achieve a quid pro quo, so that post 1^st April 2013 QOCS protection applied where D was not faced with any additional liability.

Comment

DJ Phillips said he preferred the Claimant’s arguments and ruled that she had not entered into a pre-commencement funding agreement as defined by CPR 48.2. As a result, she was afforded the protection afforded by QOCS for the purpose of the proceedings.

Permission to appeal has been granted.

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