QOCS PROTECTION COVERS A COUNTER-CLAIMING DEFENDANT: SOMETHING TO THINK ABOUT
I am grateful to barrister Andrew Lyons for sending me a copy of the judgment of HHJ Freedman in Ketchion -v- McEwan (28th June 2018), a copy of which is available here, 1061737_Ketchion v McEwan_Judgment for Approval_26 6 18. It is a case that considers the limits of QOCS. An unsuccessful counterclaiming defendant has the benefits of QOCS protection in an action brought against them.
The claimant brought proceedings following a road traffic accident, his claim did not include a claim for personal injuries. The defendant defended the action and brought an action for personal injury damages as a Part 20 claim.
The claimant succeeded at trial and the defendant’s claim was dismissed. It was held that the claimant was entitled to fixed costs. However those fixed costs could not be enforced without permission of the court because of the protection of QOCS.
The claimant appealed.
THE IMPACT OF CARTWRIGHT
There was some delay in the appeal being heard. The judge allowed further submissions to be made after the Court of Appeal judgment in Cartwright v Venduct Engineering Ltd  EWCA Civ 1654.
21. Until the judgment in Cartwright was handed down, it seemed to me that, it was at least arguable that it would be possible to divide up proceedings into, on the one hand, a claim and, on the other, a Part 20 claim, i.e. two sets of proceedings, albeit that the decision in Howe tended to suggest otherwise. However, in the light of the decision in Cartwright, it seems to me that proceedings must be given a wide definition.
22. Accordingly, I accept the submission, without hesitation, that it would be patently absurd and illogical if the word proceedings is deemed to cover all of the claims brought against six separate defendants, but not a claim and Part 20 claim, both of which arise out of the same accident and are joined in one action. Whilst, on one view, it may seem unjust that the defendant can avoid payment of costs in the main action, purely as a result of bringing Part 20 proceedings for damages for personal injuries, it seems to me that that is an inevitable result of the wording of CPR44.13 and 44.14. I agree with Mr Lyons that if the intention was to limit a Part 20 claimant’s protection in costs, such would have been expressly set out in the rules.
23. In my judgment, therefore, the proper interpretation of CPR44.13 is that the reference to proceedings is to both the claim and the counterclaim; and that since it is expressly stated that a Claimant includes a person who brings a counterclaim/additional claim, it follows that the Defendant/Part 20 Claimant has the protection of QOCS. For the reasons advanced by Mr Lyons, I reject the submission that to interpret the provisions in this way will encourage spurious or hopeless claims for damages for Personal Injuries.
24. In my view, therefore, the decision of the Deputy District Judge was correct.
25. Prior to the handing down of the decision in Cartwright, I considered that this appeal was arguable and stood some chance of success. However, on a careful analysis of the Judgment in Cartwright, it seems to me that it can no longer be said that this appeal stands a real prospect of success.
26. In these circumstances, I am constrained to refuse permission to appeal.”