I am grateful to barrister Sarah Robson for sending me a copy of the Court of Appeal judgment today in Wickes -v- Blair (No 2) Costs [2020] EWCA Civ 17. The Court of Appeal held that QOCS protection continues to apply to a “second tier” appeal. (Sarah has written an article on the case – which is available here. This shows that the parties had agreed a “drop hands” deal before handing down of the judgment).
“The purpose of the QOCS regime is to facilitate access to justice for those of limited means…if a claimant’s access to justice is dependent on the availability of the QOCS regime, that access will be significantly reduced if he is exposed to a risk as to the costs of any unsuccessful appeal which he may bring or any successful appeal a defendant may bring against him.”
THE CASE
The claimant had been unsuccessful in an appeal to the Court of Appeal. It was agreed that the claimant should pay the defendant’s costs of the appeal. It was not agreed that the claimant should have QOCS protection.
THE COURT OF APPEAL: QOCS CONTINUE TO APPLY IN THE COURT OF APPEAL
Lord Justice Baker held that QOCS continued to apply.
24. S. 51 of the Senior Courts Act 1981 provides that the costs of proceedings in the civil division of the Court of Appeal, the High Court and the county court shall be in the general discretion of the court, subject to rules of court. The rules governing appeals to those courts are set out in CPR Part 52. Rule 52.19(1) gives an appeal court a specific discretion to make an order limiting the recoverable costs of the appeal in “any proceedings in which costs recovery is normally limited or excluded at first instance”. Proceedings at first instance under the Protocol plainly fall into that category. It follows that the fixed costs regime applicable to proceedings at first instance under the Protocol does not apply to the costs of an appeal. Instead, the appellate court has a discretion in such cases to limit the costs recoverable.
25. In the circumstances of this case, however, 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.
26. Furthermore, this appeal raised a point of practice. Had the interpretation of Practice Direction 8B advanced on behalf of the respondent been accepted by this court, it is likely that a significant number of cases would automatically have fallen out of the Protocol and claimants in those cases would have incurred additional costs. It is therefore at least arguable that this appeal comes within rule 52.19(3).
27. For these reasons, I would make an order that the respondent pay the appellant’s costs of the appeal to the circuit judge and of the further appeal to this court, to be assessed if not agreed.
28. In my judgment, however, enforcement of the costs order is subject to the QOCS regime. I agree with the interpretation of the rules set out by Edis J in Parker v Butler. 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.
29. I do not read the decisions in Hawksford and Wagenaar as being in conflict. In each case, this court held that the word “proceedings” had to be interpreted to reflect the legislative purpose. The purpose of the QOCS regime is to facilitate access to justice for those of limited means. As Edis J observed at paragraph 3 of his judgment in Parker v Butler, if a claimant’s access to justice is dependent on the availability of the QOCS regime, that access will be significantly reduced if he is exposed to a risk as to the costs of any unsuccessful appeal which he may bring or any successful appeal a defendant may bring against him. It follows that, as Edis J noted at paragraph 17 of his judgment, 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. This interpretation applies even where, as here, (a) the court is dealing with a second appeal, (b) the appeal is brought by the defendant to the original claim, and (c) the court has declined to exercise its discretionary powers to limit recoverable costs under CPR 52.19.
30. It follows that the costs order I would propose making for the reasons set out above is not enforceable against the respondent. For the avoidance of doubt, the order made as a result of this judgment should include a recital to that effect.
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