Qualified One Way Costs Shifting - Mark Carlisle, Director of Deep Blue Costs and Consultant Law Costs Draftsman at Berlad Graham LLP
16/10/15. The transitional provisions and Casseldine –v- the Diocese of Llandaff Board for Social Responsibility [2015]
On the face of it QOCS is straight forward. It provides Claimants in personal injury cases with full protection against liability for costs save where (a) there is an adverse order for part of the costs and its amount does not exceed the aggregate of damages and interest ordered (so interim orders in favour of the Defendant can be set off against damages), (b) the proceedings are struck out on specified grounds, or (c) where the claim is found to be fundamentally dishonest.
It is fully retrospective in respect of those proceedings that it covers, applying to claims issued both before and after 1st April 2013, and is disapplied only where the transitional provisions say so.
The transitional provision at 44.17 is short and to the point -
44.17 This Section [which comprises the totality of the QOCS rules] does not apply to proceedings where the claimant has entered into a pre-commencement funding arrangement (as defined in rule 48.2).
Previous thinking on the transitional provisions had therefore concluded in light of the above that if a client had at any point entered into pre Jackson Conditional Fee Agreement, QOCS was disapplied for ever more. This was what emerged from the decision of Master Haworth in the case of Landau –v- the Big Bus Company, in which the Claimant was funded at first instance by a pre Jackson CFA, and on appeal by a post Jackson CFA. Master Haworth concluded that “whilst it may be unreasonable, unfair and inconvenient to deny the claimant the benefit of QOCS in this case, for the reasons given on a true construction of the relevant provisions of CPR in this case, QOCS does not apply” however his reasoning was based quite narrowly on the definition of “proceedings” within the provisions that we will come to shortly, concluding that the appeal did not constitute separate proceedings from the original claim.
But…. dig just a little deeper into the changes both to the costs rules generally and the transitional provisions and a whole world of uncertainty emerges, largely caused it seems by...
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