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Two Lacunas Too Big: Appeal Costs in Low Value Personal Injury Litigation - Vinesh Mistry, Barrister, DWF Advocacy Ltd

  1. 27/08/20. In Wickes Building Supplies Limited v William Gerarde Blair (No. 2) (Costs) [2020] EWCA Civ 17 ("Blair") it was agreed between the parties that the claimant to the substantive litigation, Mr. Blair, would pay the costs of unsuccessfully appealing a stage three hearing ([2019] EWCA Civ 1934). The Court of Appeal, therefore, in broad terms had to consider whether the costs of the substantive appeal were fixed by CPR 45.17 and whether Mr Blair, notwithstanding the quantum of those costs, benefited from QOCS protection under CPR 44.13.

  1. Baker LJ held that: 1. an appeal court was not bound to apply the fixed costs regime; and 2. an appeal costs order could only be enforced to the extent permitted by CPR 44.14.

  1. This article analyses both conclusions and it is argued that Blair has created two lacunas in the law which require remedy: 1. the Court has failed to give any meaningful assistance to the profession on the application of CPR 52.19 to low value personal injury litigation; and 2. it has also failed to consider the application of QOCS to the appeal of “mixed claims”. A potential solution for each lacuna is suggested.

Issues and Judgment

  1. The underlying claim in Blair arose out of an accident at work. Mr Blair brought an action against his employer, the defendant company, in the Pre-Action Protocol for Low Value Personal Injury (Employers' Liability and Public Liability) Claims. Damages were awarded following a stage three hearing. That decision was appealed by Mr Blair. The defendant was ultimately successful when the matter reached the Court of Appeal, who reinstated the original decision of the District Judge. It was agreed between the parties that Mr Blair would in principle pay the costs of the appeal. Therefore, the Court of Appeal was required to determine if those costs were subject to the fixed costs regime under CPR 45.17 and whether any costs order could be enforced to the extent permitted by CPR 44.14.

  1. Baker LJ, on the application of the fixed costs regime, held at [24] that:

"The rules governing appeals to those courts are set out in CPR Part 52. Rule 52.19(1) gives an appeal court a specific discretion to make an order limiting the recoverable costs of the appeal in “any proceedings in which costs recovery is normally limited or excluded at first instance”. Proceedings at first instance under the Protocol plainly fall into that category. It follows that the fixed costs regime applicable to proceedings at first instance under the Protocol does not apply to the costs of an appeal. Instead, the appellate court has a discretion in such cases to limit the costs recoverable." (Emphasis added)

  1. On QOCS protection, Baker LJ concluded at [29] that:

"The purpose of the QOCS regime is to facilitate access to justice for those of limited means. As Edis J observed at paragraph 3 of his judgment in Parker v Butler, if a claimant’s access to justice is dependent on the availability of the QOCS regime, that access will...

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