The Issues:

The main action was a claim for personal injury following a road traffic accident. The claim failed at the first instance trial. At first instance, the Claimant’s solicitors acted under a CFA, which pre-dated the Jackson changes. The Claimant also had an ATE policy which only covered the first-instance claim. It was agreed that the Claimant’s first CFA covered the claim and “an appeal by your opponent”.

Permission was granted to the Claimant to Appeal and his solicitors entered into a new CFA which post-dated 1 April 2013.

The Appeal also failed and the main issue for determination was that of costs; in particular whether or not Qualified One-Way Costs Shifting (“QOCS”) applied in relation to the appeal.

Held:

The Claimant maintained that the new CFA related to a different set of “proceedings” pursuant to CPR 44.17, therefore Qualified One-Way Costs Shifting (QOCS) should apply in relation to the appeal.

The Defendants submitted that this was not the case, both due to the wording of CPR 48.2; and/or that as there was only one set of damages at stake, the entire case was one set of “proceedings”. Therefore, QOCS did not apply at all.

At paragraph 18 of his Judgment, Master Haworth stated:

“I accept the Second Defendant’s submission that it was clearly Parliament’s intention that a pre-commencement CFA entered into in respect of the “matter” would disapply QOCS in any “proceedings” arising out of that matter.”

The Court held that QOCS does not apply on appeal if it did not apply at first instance. Master Haworth accepted the definition of a pre-commencement CFA in CPR 48.2 as ("[an] agreement ... entered into before 1 April 2013 specifically for the purposes of the provision ... of advocacy or litigation services in relation to the matter that is the subject of the proceedings in which the costs order is to be made") which meant that all proceedings arising out of the same "subject matter" formed one set of proceedings. In any event, Master Haworth also held that for the purposes of CPR 44.17, the appeal was part of the same "proceedings" as at first instance.

Comment:

As we all know, Qualified one-way costs shifting (QOCS) was introduced on 1 April 2013 by Section II of CPR Part 44. The rules apply in all personal injury claims and are retrospective save where CPR 44.17 applies, which states:

"This Section does not apply to proceedings where the claimant has entered into a pre-commencement funding arrangement (as defined in rule 48.2)."

It is well understood that QOCS would not apply to claims brought where a CFA was taken out before 1 April 2013. It is now clear that any appeal following a first instance decision where QOCS does not apply will never have QOCS protection even if a second CFA is entered into. However this decision also suggests that QOCS would not apply to any claim which had ever had a CFA pre-dating 1 April 2013 even, for instance, where there has been a change in solicitor resulting in a post 1 April 2013 CFA being signed.

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