Court of Appeal
Achille v Lawn Tennis Association Services Ltd
[2022] EWCA Civ 1407

Baker, Males, Edis LJJ
2022 Oct 13; 27
CostsOrder for costsEnforcement Qualified one-way costs shiftingClaimant bringing personal injury claim and non-personal injury claims against defendantClaimant’s personal injury claim struck as disclosing no reasonable grounds for bringing claim Judge making costs order in favour of defendantsWhether claimant entitled to qualified one-way costs shifting protectionWhether case falling within exception to qualified one-way costs shifting rule CPR rr 44.15(1), 44.16(2)(b)

The claimant brought a claim against the defendant by which he sought damages for psychiatric injury, a recognised category of personal injury, and damages for injury to his feelings, which was not a claim for personal injury. The claim for damages for psychiatric injury was struck out on the ground that it disclosed no reasonable grounds for bringing the claim. However, the claim for injury to feelings remained to be determined. The claimant was ordered to pay the defendant’s costs of the claim for damages for personal injury, the judge finding that the requirements of CPR r 44.15(1), which provided for an exception to the Qualified One-Way Costs Shifting (“QOCS”) regime applying to personal injury claims where “the proceedings has been struck out on the grounds that— (a) the claimant has disclosed no reasonable grounds for bringing the proceedings”, was satisfied, since “the proceedings” in that rule referred to the personal injury claim alone. The claimant appealed, contending that “the proceedings” in CPR r 44.15 meant the entirety of the claims brought by a claimant against a defendant in a single action.

On the appeal—

Held, appeal allowed. The basic rule of the Qualified One-Way Costs Shifting (“QOCS”) regime in Section II of CPR Pt 44, as set out in CPR r 44.14, was to place a cap on the claimant's liability to pay the defendant's costs, so that any order for costs made against a claimant could only be enforced up to the amount of any damages and interest ordered in his favour. That basic rule was qualified by CPR r 44.15 and CPR r 44.16, so that an order for costs in favour of the defendant could be enforced to its full extent, under the former rule without needing the permission of the court and under the latter rule only with such permission. The purpose of the QOCS regime was that personal injury claimants with a real prospect of success should have protection from the enforcement of costs, but those with hopeless personal injury claims should not. Although QOCS applied to personal injury cases, claimants who had suffered personal injury often brought mixed claims, as in the present case, in which they sought damages for personal injury together with damages for other losses. The natural meaning of the term “proceedings” was synonymous with an action, which was not concluded until all matters before the court had been concluded. Although it was possible that the term “proceedings” had a different meaning in CPR r 44.15 from that which it bore elsewhere in the QOCS rules, it would not do so unless it was necessary in order to give effect to the purposes of the QOCS rules. The second purpose of the QOCS regime, namely to deter frivolous claims, was not to deter claims which failed or were likely to fail, or even claims which were susceptible to reverse summary judgment. The deterrent aspect of CPR r 44.15 was confined to claims which had been struck out on one of the three grounds set out in the rule. Those were claims which should not have been brought in the first place, or where the claimant's conduct of the claim merited the severe sanction of striking out. It was only when the claim had been struck out on one of the grounds mentioned that CPR r 44.15 applied. In a mixed claim, it was not necessary to interpret “proceedings” in CPR 44.15 as referring to the personal injury claim alone in order to give effect to that deterrent purpose, since CPR r 44.16(2)(b) enabled the court to order that a costs order made against the claimant could be enforced to its full extent, because such a case was one where “a claim was made for the benefit of the claimant other than a claim to which this section applies”, namely, where a non-personal injury claim was made. There was, therefore, no reason why the judge striking out the personal injury claim should not make an order for costs and assess those costs summarily, if it was appropriate to do so. That would often be the convenient course. The question of enforcement of the order could then be deferred to the conclusion of the proceedings, to be dealt with pursuant to CPR r 44.16, or, if the surviving claim succeeded, by being set off against any damages pursuant to CPR r 44.14. In such a case the permission of the court had be obtained before enforcement under CPR r 44.16, and that permission would only be given to the extent that the court considered it just to do so. Accordingly, it followed that a claimant in a mixed claim case where the personal injury claim was struck out was not in quite as good a position as a claimant where a personal injury claim was struck out and there was no other claim. However, as the court had power in the mixed claim case to make whatever order it considered would meet the justice of the situation, it was impossible to say that the claimant's interpretation resulted in injustice or defeated the purpose of the QOCS rules (paras 2–5, 17, 18, 21–22, 29, 31–37, 38, 39, 41, 42)

Wagenaar v Weekend Travel Ltd (trading as Ski Weekend) [2015] 1 WLR 1968, CA and Brown v Comr of Police of the Metropolis [2020] 1 WLR 1257, CA considered.

Frederick Lyon and Ryan Ross (directly instructed) for the claimant.

Helen Bell (instructed by Browne Jacobson LLP) for the defendant.

Sharene P Dewan-Leeson, Barrister

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