FAULKNER V SECRETARY OF STATE FOR BUSINESS, ENERGY AND INDUSTRIAL STRATEGY

QOCS: Setting Off Costs Against Costs

The court exercised its discretion against allowing a defendant to set off ‘costs against costs’ in a case where it unsuccessfully applied to resurrect a discontinued claim with a view to striking it out and thus removing the protection of QOCS by virtue of CPR 44.15.

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Court of Appeal: Fixed Costs Do Not Apply To Appeals But QOCS Does

The Court of Appeal determined the following costs issues following a successful second appeal:

(1) Do the rules governing fixed costs in CPR r.45.17 to 19 apply to the costs of the appeal?

(2) If not, does CPR r.52.19 apply?
(3) If CPR r.52.19 does apply, what order for costs should we make?

(4) Does the Qualified One-Way Costs Shifting regime in CPR Part 44 apply to the costs of the appeal so as to limit the extent to which any order may be enforced against the respondent?

Exceptions to Qualified One Way Costs Shifting (QOCS)

Mixed Claims and CPR 44.16(2)(b): Exceptions to Qualified One Way Costs Shifting (QOCS)

The Court of Appeal has considered the correct approach to QOCS in “mixed” cases involving personal injury and non personal injury claims. Affirming the approaches taken in Jeffreys v Commissioner of the Metropolis [2017] EWHC 1505 (QB) and Siddiqui v The Chancellor, Masters and Scholars of the University of Oxford [2018] EWHC 536 (QB) and upholding the decision of Mrs Justice Whipple DBE in The Commissioner of Police of the Metropolis v Brown [2018] EWHC 2046 (Admin) Lord Justice Coulson rejected arguments that in order for the exception to QOCS at CPR 44.16(2)(b) to apply the personal injury claim and the non-personal injury claim must be “divisible”.

Fundamental dishonesty found on appeal by reason of material non disclosure

On a cross appeal arising out of this failed RTA claim Mr Justice Julian Knowles overturned the trial judge’s finding that the claimant had not been fundamentally dishonest in his claim against the defendant. Thus, it followed, QOCS was disapplied and the defendant became entitled to enforce the order for costs in its favour to its full extent.

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QOCS protection does not extend to an unsuccessful counterclaimant’s defence in a personal injury claim

High Court

QOCS applies to appeals, High Court rules

CPR 44.13 should be interpreted in a way that “more justly achieves what is plainly the purpose of the regime as divined from the Rules”, says Edis J.