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

wickes

The Court of Appeal determined the following costs issues in this case:

(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?

They reached the following conclusions:

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

“the fixed costs regime applicable to proceedings at first instance under the Protocol does not apply to the costs of an appeal.” 


If not, does CPR r.52.19 apply?

“Instead, the appellate court has a discretion in such cases [under CPR 52.19] to limit the costs recoverable.”


If CPR r.52.19 does apply, what order for costs should we make?

“I am not persuaded that the court should exercise its discretion under rule 52.19. The respondent made a claim under the Protocol and the appellant properly complied with all the procedural requirements up to and including the hearing before the district judge. The respondent then filed an appeal notice seeking to overturn the order he had obtained from the district judge, relying on his own failure to comply with the procedural requirements of the Protocol. That appeal was, in my judgment, wholly unmeritorious and led the appellant to incur unnecessary additional costs. In those circumstances, I conclude that the appellant is entitled to its costs of both appeals. I do not consider that the inequality in the parties’ financial circumstances justifies any departure from that outcome, nor do I consider that wider principles of access to justice have any relevance to the decision on this issue.”


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?

“Having regard to the purpose of the QOCS regime, I interpret the word “proceedings” in CPR r.44.13 as including both the first instance proceedings and any subsequent appeal… to construe the word “proceedings” as excluding an appeal would do nothing to serve the purpose of the QOCS regime. I therefore conclude that any appeal which concerns the outcome of the claim for damages for personal injuries, or the procedure by which such a claim is to be determined, is part of the “proceedings” under CPR r.44.13.”

WICKES BUILDING SUPPLIES LTD V BLAIR (NO.2 : COSTS) [2020] EWCA CIV 17