IBIYINKA MACAULAY v (1) DR ABDUL KARIM (2) CROYDON HEALTH SERVICES NHS TRUST SC-2021-APP-001284

QOCS, Legal Aid And Interim Payments On Account Of Damages

“QOCS applies to proceedings which include a claim for damages for personal injuries (CPR 44.13(1)), the Claimant falls within the definition of those to whom QOCS applies (CPR 44.13(2)) and there is nothing in the rules to exclude him because he was legally aided … there is no difficulty in the approach to be taken in the case of a legally aided party who is also entitled to QOCS, because legal aid costs protection relates to the amount to be paid and QOCS relates to enforcement. The applicability of QOCS is not a bar to a determination under s.11 of the 1999 Act (or s.26 of the 2012 Act), although, in practice, if QOCS does apply, there may be little reason for the receiving party to make a request for a determination.”

Ho v Adelekun

No Costs Against Costs Set Off Allowed In A QOCS Case | Supreme Court Decision

…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)

Ho v Adelekun

The Power To Set Off Costs Against Costs In A QOCS Case

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 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.

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.

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.

qocs

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