…we do not consider that the well- established jurisdiction to direct set-off of costs against costs under rule 44.12 is displaced by the QOCS scheme, provided that there is an order for damages or interest and that the headroom provided by that order has not been exhausted by other means of enforcement. But for the reasons already given we do not accept the submission that it is only the net costs entitlement that has to be brought into account under rule 44.12(1)
In November last year the Court of Appeal decided that fixed costs continued to apply in a case which started under the RTA Protocol and was settled by way of the acceptance of a Part 36 Offer which referred to CPR 36.13 and offered to pay “costs to be subject to detailed assessment if not agreed”.
As a consequence of that decision the Appellant (original defendant) was awarded her costs of the appeal.
The question to be determined now was whether the court had jurisdiction to set off those costs against the costs owed to the Respondent (original claimant) in the substantive claim.
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.
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?
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  EWHC 1505 (QB) and Siddiqui v The Chancellor, Masters and Scholars of the University of Oxford  EWHC 536 (QB) and upholding the decision of Mrs Justice Whipple DBE in The Commissioner of Police of the Metropolis v Brown  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”.
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.
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.