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Discontinuance and QOCS in the Court of Appeal: Excalibur & Keswick Groundworks Ltd v Mcdonald [2023] EWCA Civ 18 - Sebastian Bates, Temple Garden Chambers

22/02/23. The Claimant in this case had discontinued on the morning of the trial, after being invited to consider his position in the light of inconsistencies between his pleaded case, witness statement, and medical records: see [7]. In this context, the Court of Appeal pronounced on what were described at [17] as ‘three points of principle or practice’.


First, the Court addressed ‘[t]he circumstances in which it is legitimate for the court to set aside a Notice of Discontinuance under CPR 38.4 in a QOCS case’: see [17(1)]. The Court’s analysis (at [38]–[39]) was that ‘[g]iven the breadth of the discretion accorded to the court to set aside a Notice of Discontinuance, coupled with the fact that a claimant can discontinue as of right subject to limited exceptions, [. . .] there need to be powerful reasons why a Notice of Discontinuance should be set aside’ and, in particular, ‘evidence of abuse of the court’s process or egregious conduct of a similar nature is required’. At [39], the Court denied ‘that a court is required to approach CPR 38.4 differently in a personal injury claim to which QOCS applies’.

Second, the Court examined ‘[t]he proper approach to the power of the court to strike out a claim if “the conduct of the claimant . . . is likely to obstruct the just disposal of the proceedings”’ in the sense of CPR 44.15(c): see [17(2)]. At [49], the Court formulated the question that must be answered in the affirmative if a party is to obtain strike-out as follows: ‘[I]s the litigant’s conduct of such a nature and degree as to corrupt the trial process so as to put the fairness of the trial in jeopardy?

Third, the Court considered ‘[w]hether it is permissible for the court to use CPR 3.1(2)(m), 38.4 and 44.15 purposively to enable QOCS to be disapplied if that is consistent with, and further, the overriding objective’: see [17(3)]. The Court explained (at [52]) that ‘[i]t is only if a case has been struck out that CPR 44.15(c) becomes engaged’ and the provision ‘creates no new principle, rather it prescribes what happens to QOCS protection when the case has been struck out’. The Court regarded ‘the fact that it contains the same phrase [. . .] as that contained in CPR 3.4(2)(b)’ as ‘[c]onsistent with the point that no new principle is created’.

Conclusion and Comment

For reasons given at [41] and [50], the Court did not view the Claimant’s conduct as sufficiently egregious to justify setting aside his Notice of Discontinuance or found a conclusion that the proceedings had been corrupted. It therefore refused to allow the Defendant ‘to remove the substantive right of the [C]laimant to the protection provided by the broad-based and mechanical provisions of the QOCS scheme’ (see [53]) in a decision of note for practitioners on either side of personal injury litigation.

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