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The ambit of QOCS considered (again): who can recover costs in cases outside the straightforward Claimant v Defendant scenario? - Alice Nash, Hailsham Chambers

28/01/19. In Cartwright v Venduct Engineering Limited [2018] EWCA Civ 1654, decided in July 2018, the Court of Appeal held that in a QOCS case with multiple defendants, the ability to recover costs from damages pursuant to CPR r.44.14(1) extended to all the defendants, not just the defendant who paid those damages. Cartwright has subsequently been relied upon, with conflicting results, in two County Court cases addressing the slightly different question of whether a counterclaiming defendant is entitled to the protection of QOCS in relation to all the costs of the action in which the claim and counterclaim were brought.

Multiple defendants

In Cartwright, the Claimant had sued several defendants for noise-induced hearing loss. He compromised his claim against certain of the defendants by way of a Tomlin order which provided for the payment of damages, and discontinued his claim against Venduct, meaning that a deemed award of costs arose in Venduct’s favour. Venduct sought to recover their costs from the payment made from the other defendants.

The Court of Appeal held that there was nothing in the wording of CPR r.44(1) to suggest that the fund from which a costs order could be met was specific to damages and interest payable by the defendant seeking to enforce the costs order. The language of the rule was wide and could plainly encompass the situation in which...

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