Parker v Butler
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Edis |
| Judgment Date | 26 May 2016 |
| Neutral Citation | [2016] EWHC 1251 (QB) |
| Court | Queen's Bench Division |
| Date | 26 May 2016 |
| Docket Number | Case No: A54YM068 |
[2016] EWHC 1251 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ON APPEAL FROM THE KINGSTON-UPON-HULL COUNTY COURT
Her Honour Judge Pemberton
A547M068
Leeds Combined Court Centre
The Courthouse
1 Oxford Row
Leeds LS1 3BG
Mr Justice Edis
Case No: A54YM068
Mr. Craig Fisher (instructed by 2020 Legal Limited) for the Claimant/Appellant
Mr. James Benson (instructed by DWF) for the Defendant/Respondent
Hearing dates: 23 rd May 2016
Approved Judgment
The issue for resolution in this judgment is this:-
In a case where a claimant has the benefit of Qualified One Way Costs Shifting (QOCS) at trial, is he subject to the ordinary rules as to costs on a first appeal to an appeal court at least where no other order is made under CPR 52.9A?
This is a small case in value terms, but the issue may apply equally to very substantial claims and appears to be undecided. There are some decisions of the Court of Appeal Civil Division which may provide assistance by analogy, but I have not been referred to any case directly on the point.
If (as is likely to be the case here) the claimant's access to justice is dependent on the benefit of QOCS, that access will be significantly reduced if he is exposed to a risk as to the costs of any unsuccessful appeal which he may bring or any successful appeal a defendant may bring against him. The effect of QOCS is that his liability to meet any adverse order for costs is limited to the value of sums recovered in the proceedings by way of damages except in certain circumstances. In other words, except in those circumstances, he cannot be worse off as a result of bringing his claim. If he has the benefit of a Conditional Fee Agreement he will not be liable for his own costs and QUOCS restricts his liability to the sums recovered in the proceedings. The risk that a failure in litigation may result in the loss of existing assets is a substantial inhibition on access to justice and that is an important part of the reason why QOCS was established.
The power to make enforceable orders for costs is designed to compensate successful parties for their expense in bringing or resisting claims, but it also has an effect of deterring people from bringing or resisting claims unsuccessfully. It is an incentive to resolve disputes and serves a public as well as a private interest. That consideration is in tension with access to justice. In appellate civil proceedings in QUOCS cases permission to appeal is always required. That filter affords some protection for the civil justice system and the other parties against unmeritorious appeals. The costs disincentive is not rendered irrelevant by this fact, but in resolving the tension between access to justice and other considerations it is reasonable to start from the proposition that the issue only concerns the claimant's ability to bring an appeal which a judge has held to have a realistic prospect of success or that there is some other compelling reason for it, or to resist an appeal where a judge has made the order which is challenged. Therefore, in either case the stance of the claimant has a measure of judicial approval at a very early stage in any appeal proceedings. In these circumstances a claimant's right to access to justice deserves particular weight.
The way in which the issue arises
On the 23 rd May 2016 I dismissed the claimant's appeal against the dismissal of his claim for personal injuries by Her Honour Judge Pemberton on 3 rd March 2015. That was a claim which had been allocated to the fast track. The claim arose out of a road traffic accident which occurred on 10 th April 2013. The appeal was brought with leave of the High Court Judge. In my judgment leave was properly granted applying the test to which I have just referred. I decided that the reasoning of the judge could not be sustained, but that I could and should decide the liability issue on the material before me. I found that the claim was properly dismissed but for different reasons from those given by the judge. The reasons were given orally in an ex tempore judgment at the conclusion of the hearing.
The defendant/respondent, having successfully resisted the appeal, sought an order for his costs. He is funded by his insurer. I assessed the costs summarily in the sum of £2,795.21 including VAT. The Claims Notification Form was dated 12 th July 2013 and the fixed costs regime only applies to cases where it was dated after 31 st July 2013. The assessment was therefore not governed by that regime.
It was common ground that QOCS applies to this case because there was no funding arrangement in place before 1 st April 2013 (the accident occurred 10 days after that date). The costs order against the claimant after the trial was therefore not enforceable without permission by virtue of CPR 44.14 because no sum in damages or interest had been recovered in the proceedings. The issue for me is whether the costs order which I have made on appeal is subject to the same rule.
I am grateful to both counsel who argued this point with restraint and enthusiasm. I was told that they had been unable to find any authoritative decision on the point and that they had looked. For this reason I decided to reserve judgment and to send it out in writing.
The Rules and the closest decision to the present
CPR 44.13 provides
"(1) This Section applies to proceedings which include a claim for damages –
(a) for personal injuries"
The issue is, therefore, whether the appeal is part of the proceedings which include a claim for damages for personal injuries or whether it is separate from them and thus not subject to the regime. If it is separate from the proceedings which culminated in the trial, is it nonetheless a set of proceedings which includes a claim for damages?
Mr. Benson, on behalf of the defendant/respondent, relied on CPR 52.9A
"52.9A—Orders to limit the recoverable costs of an appeal 1
52.9A (1) In any proceedings in which costs recovery is normally limited or excluded at first instance, an appeal court may make an order that the recoverable costs of an appeal will be limited to the extent which the court specifies.
(2) In making such an order the court will have regard to—
(a) the means of both parties;
(b) all the circumstances of the case; and
(c) the need to facilitate access to justice.
(3) If the appeal raises an issue of...
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Wickes Building Supplies Ltd v William Gerarde Blair (No.2) (Costs)
...the proper meaning of the word “proceedings” in CPR Part 44.13 has to be divined primarily from the rules on QOCS themselves. ….” 20 In Parker v Butler [2016] EWHC 1251 (QB), Edis J had to consider substantially the same point as arises in the present case. In paragraph 1 of his judgment h......
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QOCS Apply To Appeal Proceedings
...Parke v Butler [2016] EWHC 1251 (QB), the High Court held that a claimant has the benefit of Qualified One Way Costs Shifting (QOCS) on a first appeal to an appeal CPR r44.13 provides that QOCS is available for "proceedings" which include a claim for damages for personal injuries. The judge......