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PI Practitioner, July 2017

16/07/17. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.

QOCS and MIB claims

In Howe v MIB [2017] EWCA Civ 932 the Court of Appeal considered whether a claim against the MIB fell within the scope of the Qualified One-Way Costs Shifting regime.
The High Court had determined that such a claim was outside the QOCS regime. While the rationale of the QOCS regime applied to an MIB claim, a claim against the MIB was a claim for compensation recoverable by statute and there was no breach of duty on the part of the MIB. Many have wondered whether, by analogy, claims under The European Communities (Rights Against Insurers) Regulations 2002 would also be excluded.

Lewison LJ observed that applying the common law taxonomy to claims created by EU law may be misleading. In applying the Marleasing principle to the CPR, he noted that the change required was to disapply this common law taxonomy and to treat the word 'damages' in CPR r44.13 as including compensation under the regulation. While this was a departure from a strict and literal interpretation, it did not go against the grain of the rules; nor did it run contrary to the underlying purpose of the QOCS regime which, as the Judge at first instance had observed, the appellant fell within.

James Yapp & Robert Riddell
Temple Garden Chambers

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