DOES A COUNTERCLAIMING DEFENDANT HAVE THE BENEFIT OF QOCS? NOT IN THIS COURT: THERE ARE NOW TWO (CONFLICTING) JUDGMENTS ON THIS ISSUE
I am grateful to Barrister Kevin Latham for sending me details of the decision of HHJ Venn in Waring -v- McDonell  EW Misc B11 (CC). A link to the full decision is also available at the foot of Kevin’s article on the case here. The decision relates to whether an unsuccessful counterclaiming defendant has the benefit of QOCS protection. In the Waring case HHJ Venn was clear in her judgment that a defendant has no such protection. There are now two conflicting judgments on this issue.
“The defendant in this case was not an unsuccessful claimant in the claimant’s claim for damages for personal injury (he was not a claimant at all in the claimant’s claim for damages for personal injury); he was an unsuccessful defendant (and an unsuccessful claimant in his counterclaim for damages for personal injury). He only has the protection of the QOCS regime in respect of his claim for damages for personal injury and does not benefit from it in the claimant’s claim for damages for personal injury.”
The claimant brought an action for damages for personal injury. The defendant counterclaimed. At trial the judge gave judgment for the claimant and dismissed the counterclaim. The defendant asserted that it had the benefit of QOCS protection.
The defendant relied on the judgment in Ketchion -v- McEwan (28th June 2018), a copy of which is available here, 1061737_Ketchion v McEwan_Judgment for Approval_26 6 18 and which was discussed in a post on the case in September this year.
The judge disagreed with the defendant. She found that QOCS did not apply to a defendant in this position. There is a very detailed consideration of the relevant case law, including the Ketchion case.