Richard Achille v Lawn Tennis Association Services Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Males,Lord Justice Edis,Lord Justice Baker |
| Judgment Date | 27 October 2022 |
| Neutral Citation | [2022] EWCA Civ 1407 |
| Docket Number | Case No: CA-2021-003229 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1407
Lord Justice Baker
Lord Justice Males
and
Lord Justice Edis
Case No: CA-2021-003229
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
Her Honour Judge Emma Kelly
Royal Courts of Justice
Strand, London, WC2A 2LL
Frederick Lyon & Ryan Ross (instructed via Advocate) for the Appellant
Helen Bell (instructed by Browne Jacobson LLP) for the Respondent
Hearing date: 13 October 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on Thursday 27 th October 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This appeal is about the meaning of the word “proceedings” in CPR 44.15.
CPR 44.15 is part of the QOCS regime in Section II of CPR 44. “QOCS” stands for Qualified One-Way Costs Shifting, a term which cannot be described as self-explanatory, but which is intended to promote access to justice in personal injury cases. It deals with the problem that an individual who had suffered personal injury could be deterred from bringing proceedings by the prospect of liability to pay the defendant's costs in the event that his claim failed, a prospect which it is often difficult to rule out in view of the uncertainty inherent in litigation. The solution adopted in CPR 44.14 was to place a cap on the claimant's liability to pay the defendant's costs, so that any order for costs made against a claimant can only be enforced up to the amount of any damages and interest ordered in his favour. Thus an unsuccessful claimant would not have to pay any costs ordered in favour of the defendant, while even a successful claimant who obtained an order for damages would not have to pay any costs (for example of interlocutory hearings) ordered in favour of the defendant in the course of the proceedings to the extent that they exceeded the damages and interest payable by the defendant. The result was that a personal injury claimant would never be out of pocket as a result of bringing legal proceedings. Any damages recovered might be eaten up by liability to pay the defendant's costs, but the claimant would not be worse off financially as a result of bringing the claim (liability to pay his own costs being addressed in other ways).
However, a disadvantage of this scheme, if unqualified, is that it promotes access to the courts not only for meritorious claims (by which I mean claims which it was reasonable to bring, whether or not they ultimately succeed) but also for claims which are frivolous and should never have been brought in the first place. Accordingly the basic rule just described was qualified so that, in such cases, an order for costs in favour of the defendant can be enforced to its full extent, sometimes without needing the permission of the court and sometimes only with such permission. The provisions which strike this balance are CPR 44.15 and CPR 44.16.
CPR 44.15 allows a defendant to enforce a costs order made against a claimant to its full extent without needing permission from the court in three categories of case. These are (1) where the claimant has disclosed no reasonable ground for bringing the proceedings, (2) where the proceedings are an abuse of the court's process and (3) where the claimant is personally responsible for conduct which is likely to obstruct the just disposal of the proceedings.
QOCS applies to personal injury cases, but claimants who have suffered personal injury often bring mixed claims, that is to say claims in which they seek damages for personal injury together with damages for other losses. The typical example is the motorist in a road traffic accident who claims damages not only for injuries suffered in the accident but also for damage to his vehicle.
The application of the QOCS regime to mixed claims has generated a certain amount of litigation. This appeal is the latest example.
The claimant in the present case brought a mixed claim. He claimed damages for alleged psychiatric injury, which is a recognised category of personal injury, but also for injury to feelings, which is not a claim for personal injury (described as “trite law” in Brown v Commissioner of Police of the Metropolis [2019] EWCA Civ 1724, [2020] 1 WLR 1257 at [13]). His claim for psychiatric injury was struck out under CPR 3.4(2)(a) on the ground that the claimant's statement of case disclosed no reasonable grounds for bringing the claim, but his claim for injury to feelings survives and has yet to be tried. An order was made that the claimant should pay the defendant's costs of the claim for damages for personal injury, summarily assessed in the sum of £4,250.
The defendant says that this is a case where CPR 44.15 applies. It says that “the proceedings” in CPR 44.15 refers to a claimant's claim for personal injury and that, as that claim has been struck out, the order for costs can be enforced to its full extent now. The claimant disputes that interpretation of the rule, saying that “the proceedings” refers to all claims made by a claimant against a defendant in one action and that, although the claim for personal injury has been struck out, the proceedings as a whole have not been. He says that it is, therefore, premature for the costs order to be enforced against him: whether it should be enforced at all, and if so in what amount, should await the final determination of the action and will be a matter for the discretion of the court under CPR 44.16 – or, in the event he is successful in his remaining claim, the order will be enforceable by way of set off against any damages under the usual rule contained in CPR 44.14.
Her Honour Judge Emma Kelly, sitting in the Birmingham County Court, agreed with the defendant's interpretation. The claimant now appeals.
The facts
It is unnecessary to say much about the facts of the case, but the following summary puts some flesh on the skeleton just outlined.
The claimant, Mr Richard Achille, has had a long-running dispute arising out of events in 2013 and 2014 which led to his expulsion from Moseley Tennis Club in Birmingham. He has brought numerous claims against a variety of defendants, none of which has so far succeeded. This has resulted in an extended civil restraint order being made against him, but the present appeal is not affected by that order.
This claim, issued on 9 th July 2018, was brought against the Lawn Tennis Association in its capacity as the national governing body for tennis. The claim alleged negligence, racial victimisation pursuant to section 27 of the Equality Act 2010 and breach of the Protection from Harassment Act 1997. The claimant claimed damages for psychiatric injury, relying on a medical report from a consultant forensic psychiatrist. He also claimed damages for injury to his feelings.
On 13 th May 2019 the claim for damages for psychiatric injury was struck out by District Judge Dickinson pursuant to CPR 3.4(2)(a), which provides that a statement of case may be struck out if it discloses no reasonable grounds for bringing the claim. However, the claim for injury to feelings was not struck out. It remains to be determined.
The District Judge ordered the claimant to pay the defendant's costs of the claim for damages for personal injury, and summarily assessed those costs in the sum of £4,250. She held that the requirements of CPR 44.15(1) had been satisfied, so that the defendant could enforce the order for costs to its full extent without needing the permission of the court.
The claimant, acting as a litigant in person, appealed against the striking out of his claim as well as the order for costs. The judge observed that his grounds of appeal lacked clarity. Permission to appeal was initially refused but eventually permission to appeal on the costs issue was obtained and the appeal came before Judge Kelly on 28 th September 2021, with the claimant still acting in person.
The QOCS provisions
In order to make sense of the parties' submissions, it is convenient to set out the whole of the QOCS provisions in Section II of CPR 44. As this appeal is concerned with the meaning of the word “proceedings” in CPR 44.15, I emphasise the word wherever it appears in these provisions. As I shall explain, it is the defendant's case that the meaning of the word varies from one such provision to another:
“ 44.13 Qualified one-way costs shifting: scope and interpretation
(1) This Section applies to proceedings which include a claim for damages –
(a) for personal injuries;
(b) under the Fatal Accidents Act 1976; or
(c) which arises out of death or personal injury and survives for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934,
but does not apply to applications pursuant to section 33 of the Senior Courts Act 1981 or section 52 of the County Courts Act 1984 (applications for pre-action disclosure), or where rule 44.17 applies.
(2) In this Section, ‘claimant’ means a person bringing a claim to which this Section applies or an estate on behalf of which such a claim is brought, and includes a person making a counterclaim or an additional claim.
44.14 Effect of qualified one-way costs shifting
(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.
(2) Orders for costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.
44.15 Exceptions to qualified...
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