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Catalano v Espley-Tyas Development Group Ltd [2017] EWCA Civ 1132 - Jamie Carpenter, Hailsham Chambers

10/08/17. In the 1960s Ms Catalano had been employed as cone winder in a textile factory. In 2012, she decided that she wanted to bring a claim against her former employer for deafness as a result of the noise in the factory. She instructed solicitors, who entered into a CFA with Ms Catalano on 13 June 2012. So far, so commonplace.

Unfortunately, however, not everybody agreed that Ms Catalano had a good claim. In particular, no ATE insurer would agree to issue a policy. Nevertheless, Ms Catalano and her solicitor decided – in September 2012 – to proceed with the claim in the hope of getting an offer out of the Defendant. No offers were forthcoming and eventually the time came when Ms Catalano would have to issue proceedings. That was in July 2013. In the meantime, 1 April 2013 had come and gone and with it both the abolition of recoverable success fees and ATE premiums and the introduction of qualified one-way costs shifting (QOCS) in personal injury claims.

It is presumed that the reader is familiar with the basic operation of QOCS. The transitional provision in CPR 44.17 provides that “This Section does not apply to proceedings where the claimant has entered into a pre-commencement funding arrangement (as defined in rule 48.2)”. Relevantly for these purposes...

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