PI Brief Update

BB and others v Moutaz Al Khayyat and others [2025] EWHC 443 (KB) - Andrew Ratomski, Temple Garden Chambers

20/03/25. Date of judgment: 28 February 2025

This decision in long-running litigation between Syrian dissidents and the Doha Bank (“the Bank”) and others concerning financial support to conflict groups raised an important point of principle concerning the QOCS regime. By this stage, a group of the claimants in the action had discontinued (“the discontinued Claimants”) whereas another group had continued although those claims were later struck out (“the continuing Claimants”).

The issue

At a costs hearing on consequentials to Soole J’s dismissal of an application from the discontinuing Claimants that the presumptive costs rules of 38.6 be disapplied, a live issue emerged as to the Bank’s entitlement to an interim payment on account of costs. The discontinuing Claimants argued that the court had a discretion to grant them QOCS protection against enforcement of any costs order pursuant to rule 44.16(2)(b) to be considered after detailed assessment and not to be compromised by applications for interim payments.

The arguments

The discontinuing Claimants argued that the reference in 44.13(1) to “proceedings” should comprise allclaims of all claimants in the action rather than by reference to the individual claim(s) of each individual claimant. Mixed claims fall to be assessed in the same way, relying on the guidance describing QOCS as a “broad gateway” in Brown v Commissioner of Police of the Metropolis [2019] EWCA Civ 1724; [2020] 1 WLR 1257, paras. 36 and 57. The discontinuing Claimants also relied on the example of Achille v Lawn Tennis Association Services Ltd [2022] EWCA Civ 1407; [2023] 1 WLR 1371 where a claimant’s QOCS protection survived the strike out of his personal injury claim where a claim for injury to feelings remained.

As to these “overall proceedings”, the continuing Claimants claims did include damages for personal injuries, specifically physical and psychiatric injury. The submission advanced was that regardless of whether any individual claimant who had discontinued had made a claim for personal injury damages, the court had had a discretion to grant QOCS protection in whole or in part against enforcement.

The decision

The judge rejected those arguments and held there was no basis for the Discontinuing Claimants to obtain QOCS protection. Unlike the continuing Claimants, neither the discontinuing Claimants’ re-amended Particulars of Claim or confidential schedules did in fact particularise injury claims.

The judge held that these arguments were in conflict with the Court of Appeal authorities which demonstrated that (para. 16):

“…in every case where QOCS protection falls for consideration, the exclusive focus is on the claim or claims of particular claimant within the proceedings. If the claim(s) of the individual claimant in question do not include a claim for damages for personal injuries, there is no QOCS protection.”

So in Wagenaar v Weekend Travel Ltd [2014] EWCA Civ 1105; [2015] 1 WLR 1968 at para. 38 the Court of Appeal held that “the whole thrust” of rules 44.13 to 44.16 was that they concerned claimants themselves making a claim for personal injury. Similarly in Brown, Coulson LJ considered that whilst 44.13 was “widely drawn”, the CPR intended to exempt from QOCS claims which were not claims for damages for personal injury. Mixed claims are to be analysed at the level of the individual claimant who is himself making mixed claims.

The judge held there was no principled basis for a claimant who makes no claim for injury to enjoy QOCS protection merely because he is joined in proceedings with other claimants who do make claims and gave this example:

“… where a negligent driver collides with another car. The owner-driver of that car is uninjured but his car is damaged. However his passenger is injured. Since each claim arises from the common collision, both claims are for convenience brought within the same Claim Form. There is no basis for the owner-driver to enjoy QOCS protection in respect of his claim, merely because his co-claimant has a claim in those proceedings for personal injury; nor for him thereby to be in a better position than if the two had issued separate Claim Forms.”

Discussion

These were unusual claims that provided a good example to explore the application of QOCS to co-claimants in larger proceedings. The RTA example Soole J cites illustrates how in fact the issues are far from straight forward especially where issues common to a party with and without QOCS protection needs to be determined, most obviously liability. This issue will arise again in group claims where not all parties claim to have suffered the same or any injury.

https://caselaw.nationalarchives.gov.uk/ewhc/kb/2025/443?query=Moutaz+Al+Khayyat

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