A COUNTERCLAIMING DEFENDANT IS NOT ENTITLED TO QOCS PROTECTION: THAT WAS NOT WHAT THE JACKSON REFORM WERE FOR…

I am grateful to barrister Stephen Elphick for sending me a copy of the decision of HHJ Gargan in Sutcliffe -v- Ali (County Court at Middlesbrough 15th January 2021). It is a case that deals with the issue of whether a counterclaiming defendant in a personal injury case can claim the benefit of QOCS protection.  A copy of that decision is available here. Sutcliffe

“I respectfully agree with HH Judge Venn that the Jackson reforms were not intended to provide defendant insurance companies with a defence to a claim for costs where they could persuade their insured to bring claims for personal injury.”

THE CASE

The claimant brought an action for damages for personal injury following a road traffic accident.  The defendant blamed the claimant and counter-claimed for damages for personal injury. The judge found that the accident was caused by the sole negligence of the defendant. The defendant was ordered to pay damages and costs.

DID THE COUNTERCLAIM ENTITLE THE DEFENDANT TO CLAIM QOCS PROTECTION?

The defendant argued that as the counterclaim included a claim for injury then he had the benefit of QOCS protection.  The costs order, therefore, could not be enforced.

THE DECISION  OF THE CIRCUIT JUDGE

The judge carried out a detailed examination of the previous decisions in this matter and the authorities they relied upon.  There were two previous, contradictory, decisions at Circuit Judge level.   The judge preferred the approach identified by HH Venn in  Waring -v- McDonell [2018] EW Misc B11 (CC) ( a decision discussed in detail here).

THE JUDGE’S CENTRAL FINDINGS: THE DEFENDANT DID NOT HAVE THE BENEFIT OF QOCS PROTECTION

HHJ Gargan found:

• The purpose of the Jackson reforms was to preserve access to justice for personal injury litigants but to reduce the disproportionate costs involved by defendants having to meet the success fee and ATE premium.
• The solution was for defendants to waive their entitlement to costs generally.
• To allow a counter-claiming defendant to avoid paying costs would encourage defendants to raise weak or tenuous claims and give rise to considerable satellite litigation as successful claimants sought to obtain their costs.
• The approach in Waring in treating the initial claim and the additional claim as separate proceedings was consistent with the general aim of the Jackson reforms.
• “I respectfully agree with HH Judge Venn that the Jackson reforms were not intended to provide defendant insurance companies with a defence to a claim for costs where they could persuade their insured to bring claims for personal injury.”
• “... I am firmly of the view that the decision in Waring is the more consistent with the principles which lie behind the QOCS reforms.”
• “In my judgment, the defendant is not to be viewed as an unsuccessful claimant in the proceedings as a whole but rather as the unsuccessful defendant in the claim – albeit that he was also the unsuccessful claimant in his own personal injury claim.  Therefore, I consider that the claimant is entitled to enforce the order for costs which I made at the hearing.”