Wagenaar v Weekend Travel Ltd t/a Ski Weekend
| Jurisdiction | England & Wales |
| Judge | Lord Justice Vos,Lord Justice Floyd,Lord Justice Laws |
| Judgment Date | 31 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1105 |
| Docket Number | Cases No: A2/2013/3354 and A2/2013/3427 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2014 |
[2014] EWCA Civ 1105
Lord Justice Laws
Lord Justice Floyd
and
Lord Justice Vos
Cases No: A2/2013/3354 and A2/2013/3427
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
WINCHESTER DISTRICT REGISTRY
HIS HONOUR JUDGE HUGHES QC (SITTING A DEPUTY JUDGE OF THE HIGH COURT)
OWC 00196
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Andrew Eaton Hart (instructed by Blake Lapthorn) for the Claimant
Mr Mark Cannon QC and Mr Andrew R. Nicol (instructed by Stones Solicitors LLP) for the Defendant
Mr Howard Palmer QC and Ms Lucy Wyles (instructed by Pierre Thomas & Partners) for the Third Party
Hearing date: 23 rd July 2014
Introduction
This appeal raises two important issues: First, a question as to the vires of the provisions relating to Qualified One-Way Costs Shifting ("QOCS") introduced into the CPR by Rules 44.13 to 44.17 in April 2013 as a result of the reforms that were proposed by Sir Rupert Jackson's Review of Civil Litigation Costs Final Report (the "Jackson Report"); and secondly an issue as to whether QOCS applies not only to claims for damages for personal injuries brought by a claimant against a defendant, but also to claims for an indemnity or contribution brought by such a defendant against a third party, should the rules relating to QOCS be held to be valid.
In this action, the claimant, Dr Arabella Wagenaar (the "claimant") sued the Defendant, Weekend Travel Limited (the "defendant") under Regulation 15 of the Package Travel, Package Holidays and Package Tour Regulations 1992 (the "Regulations"), which provides that the party to a package holiday contract providing the holiday is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by another supplier of services. The claimant claimed damages for the personal injuries that she had sustained in a skiing accident on 8 th March 2007 that took place whilst she was on a package holiday arranged by the defendant in Chamonix, France (the "accident").
Some time later, the defendant joined the claimant's ski instructor, Ms Nawelle Serradj (the "third party"), as a third party to the claimant's claim. It was alleged by the defendant that, if the accident was caused by negligence at all (which was denied), the third party's negligence had in fact been the proximate cause of the claimant's accident.
On 19 th September 2013, HH Judge Iain Hughes QC dismissed the claimant's claim against the defendant and the defendant's claim against the third party after a lengthy trial. He gave judgment on costs on 31 st October 2013 after receiving written submissions and refusing an oral hearing. He ordered (a) that the claimant should pay the defendant's costs, but that such order was not to be enforced against the claimant pursuant to the provisions of CPR 44.13 and 44.14, and (b) that the defendant should pay the third party's costs, but that such order was not to be enforced against the defendant pursuant to the provisions of CPR 44.13 and 44.14.
There are two appeals before the court. First, the third party contends that the judge should not have held that the rules on QOCS applied to the CPR Part 20 proceedings between the defendant and the third party, and that there should not have been a stay on the order for costs in her favour. Secondly, the defendant contends that the judge should not have held that QOCS applied to the case at all. It raised three main points as follows: first, it said that the QOCS provisions are ultra vires section 51(3) of the Senior Courts Act 1981 (the "SCA 1981") which provides that "[t]he court shall have full power to determine by whom and to what extent the costs are to be paid"; secondly, the defendant contended that the rules on QOCS should not have had retrospective effect on the defendant, since most of the costs in question had been incurred before they came into force on 1 st April 2013; and thirdly, it argued that in any event, the defendant's junior counsel had a pre-commencement funding arrangement in place within CPR Rule 48.1 so that the former costs rules should apply to that arrangement.
I will return to the detail of the points made in support of the appeals, but should first set out some of the relevant factual and procedural background.
Factual background
On 8 th March 2007, the claimant was severely injured in the accident. On 5 th March 2010, the claimant issued a claim form in the Winchester County Court against the defendant (and another defendant against whom the claim was not pursued) alleging that the accident was caused by its negligence and in breach of the Regulations. On 24 th October 2011, the claim was transferred to the Winchester District Registry of the High Court, and a split trial was ordered.
On 2 nd November 2011, the defendant was granted permission under CPR Rule 20.7 to make additional claims against the third party and against a fourth party, Ski Sensations, against which the claim was later discontinued. On 4 th May 2012, the defendant served its additional claim (under CPR Part 20) against the third party (and the fourth party) claiming an indemnity and/or a contribution in respect of the claimant's claim on the grounds that, if the accident had been caused by negligence at all (which was denied), it was caused by the negligence of the third party. On 17 th August 2012, District Judge Stewart ordered that there should be a split trial, with the issue of liability to be determined as a preliminary issue, and that the claim and the CPR Part 20 claim should be heard concurrently.
On 28 th March 2013, junior counsel for the defendant entered into a conditional fee agreement with Stones Solicitors LLP, the solicitors for the defendant (the "CFA").
On 19 th September 2013, the judge delivered a 71 page reserved judgment, after a 7-day trial, in which he dismissed the claimant's claim and the defendant's Part 20 claim against the third party. He invited written submissions on costs which he duly received.
On 31 st October 2013, the judge handed down his judgment on costs in which he held, in broad outline, that the rules on QOCS were retrospective in effect, and that there was no relevant pre-commencement funding arrangement since the claimant's claim had not been funded by an after the event ("ATE") insurance policy but by the claimant's legal expenses insurance with DAS Legal Services as part of her household insurance policy with NFU Mutual, the premiums for which were paid "before the event". The judge, therefore, applied the QOCS rules and made an order that the claimant should pay the defendant's costs, but that that order was not to be enforced. As regards the claim by the defendant against the third party, he held that CPR Rules 44.13 and 44.14 applied to CPR Part 20 claims in the same manner as they applied to the primary claim between the claimant and the defendant. His reasoning was based on the fact that CPR Rule 2.3(1) defined a "claim for personal injuries" as meaning "proceedings in which there is a claim for damages in respect of personal injuries to the claimant or any other person", and that included the CPR Part 20 claim in this case. Moreover, CPR Rule 20.2(1)(b) defined an "additional claim" as any claim "other than the claim by the claimant against the defendant" and that must include CPR Part 20 claims (and counterclaims). Since CPR Part 44.13(1) applied QOCS to "proceedings which include a claim for damages … for personal injuries", that must also include the CPR Part 20 claim in this case, and CPR Part 44.13(2) defined "claimant" to include a person bringing an additional claim, which the defendant in this case was doing. Since none of the QOCS exceptions applied, the defendant would pay the third party's costs but the order was not to be enforced. The judge thought that his conclusion accorded with the overriding objective, since any other result would have created a serious injustice for the defendant, who would have had to pay his own costs and those of the third party, notwithstanding that it had successfully defended the claim.
The CPR
It is convenient to set out the parts of the CPR that have been relevant to the arguments of the parties as follows:-
i) Rule 2.3(1) provides that: ""claim for personal injuries" means proceedings in which there is a claim for damages in respect of personal injuries to the claimant or any other person or in respect of a person's death, and "personal injuries" includes any disease and any impairment of a person's physical or mental condition".
ii) Rule 20.2(1) provides that: "[t]his Part applies to – (a) a counterclaim by a defendant against the claimant and some other person; (b) an additional claim by a defendant against any person (whether or not already a party) for contribution or indemnity or some other remedy …".
iii) Rule 20.2(2) provides that: "[i]n these Rules – (a) "additional claim" means any claim other than the claim by the claimant against the defendant; and (b) unless the context requires otherwise, references to a claimant or defendant include a party bringing or defending an additional claim".
iv) Rule 20.10 (1) provides that: "[a] person on whom an additional claim is served becomes a party to the proceedings if he is not a party already".
v) Rule 44.13 provides that: "(1) [t]his Section applies to proceedings which include a claim for damages — (a)...
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