COST BITES 27: WHAT DOES “PROCEEDINGS” MEAN: COURT OF APPEAL ALLOWS APPEAL IN RELATION TO QOCS AND A MIXED CLAIM

October 27, 2022 · by · in Appeals, Costs

In Achille v Lawn Tennis Association Services Ltd [2022] EWCA Civ 1407 the Court of Appeal considered the meaning of the word “proceedings” in the costs of a claimant bringing a “mixed claim” for damages. It held that it was appropriate for the  issue of whether the claimant should pay the costs of an application striking out the personal injury element of a claim to be deferred for consideration by the trial judge.

 

“44.13 Qualified one-way costs shifting: scope and interpretation

(1) This Section applies to proceedings which include a claim for damages –

(a) for personal injuries;

(b) under the Fatal Accidents Act 1976; or

(c) which arises out of death or personal injury and survives for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934,

THE CASE

The claimant brought an action for personal injury and injury to feelings following his expulsion from a tennis club.  The claim for psychiatric injuries was struck out by a district judge.  The judge ordered that the claimant did not have the protection of QOCS and ordered that he pay £4,250 at once.

THE INITIAL APPEAL ON COSTS

The claimant was given permission to appeal the order as to costs.   On appeal the judge held that, the personal injury element of the claim being struck out, it was appropriate for costs to be paid fortwith.

“The judge’s reason for accepting the defendant’s interpretation of CPR 44.15, that is to say that “the proceedings” referred to the personal injury claim alone, was that this interpretation was consistent with and furthered the purpose of the QOCS regime, namely 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:”

THE CLAIMANT’S APPEAL TO THE COURT OF APPEAL: THE MEANING OF THE WORD “PROCEEDINGS”

The appeal was, in essence, about the meaning of the word “proceedings” in CPR 44.15.  The Court of Appeal overturned the decision that costs should be paid at once. It was appropriate for a court to assess costs immediately, but the enforcement of those costs should be left to the end of the case to be determined by the trial judge.

PROCEEDINGS
    1. The term “proceedings” is not defined in the Civil Procedure Rules. As Lord Sumption explained while giving the majority judgment in Plevin v Paragon Personal Finance Ltd (No. 2) [2017] UKSC 23, [2017] 1 WLR 1249, its meaning in legislation must depend on the statutory context and the underlying purpose of the provision in question. However, the starting point as a matter of ordinary language is that the term “proceedings” is synonymous with “action”:
“19. However, ‘proceedings’ is not a defined term in the legislation, nor is it a term of art under the general law. Its meaning must depend on its statutory context and on the underlying purpose of the provision in which it appears, so far as that can be discerned. The context in which the word appears in section 46(3) of LASPO is different and so, in my judgment, is the result.
20. The starting point is that as a matter of ordinary language one would say that the proceedings were brought in support of the claim, and are not over until the court had disposal that claim one way or the other at whatever level of the judicial hierarchy. The word is synonymous with an action. …”
    1. The issue in Plevin was whether an appeal constituted distinct proceedings from the proceedings in the court below for the purpose of section 46(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which was concerned with costs insurance policies. The context there was therefore different from the context in the QOCS provisions. Nevertheless, Lord Sumption confirms what I would regard in any event as the natural meaning of the term, namely that proceedings are synonymous with an action, which is not concluded until all matters before the court have been concluded. However, this is only a starting point.
    1. Case law has established that the term “proceedings” as used in the QOCS rules does not bear this natural meaning in its full sense. It requires some qualification in this context in order to give effect to the purpose of the QOCS regime. Thus it does not apply to a claim made by a defendant to a personal injury claim against a third party or against another defendant for contribution (Wagenaar v Weekend Travel Ltd [2014] EWCA Civ 1105, [2015] 1 WLR 1968) or to a counterclaim against a personal injury claimant (Day v Bryant [2018] EWHC 158 (QB)). These qualifications are appropriate because such claims or counterclaims have nothing to do with the purposes of the QOCS regime, which are, first, to promote access to justice in personal injury cases by removing the deterrent of potential liability for a defendant’s costs and, second, to deter frivolous personal injury claims.
    1. But the QOCS regime does apply to appeals as well as to proceedings at first instance (Blair v Wickes Building Supplies Ltd (No. 2) [2020] EWCA Civ 17, [2020] 1 WLR 1246). There is no need in this context to qualify the natural meaning of the term, because the cost protection which a claimant needs is equally needed at the appellate stage.
    1. In Wagenaar Lord Justice Vos (with whom Lord Justices Laws and Floyd agreed) said at [38] that “the proper meaning of the word ‘proceedings’ in CPR Pt 44.13 has to be divined primarily from the rules on QOCS themselves”. I respectfully agree. It is these rules which provide the context within which, and demonstrate the purpose for which, the term is used. It is therefore unlikely to be helpful to seek the meaning of the term “proceedings” as used in the QOCS provisions elsewhere in the Civil Procedure Rules, where the usage is not necessarily consistent.
    1. Lord Justice Vos concluded:
“40. Thus, in my judgment, CPR r 44.13 is applying QOCS to a single claim against a defendant or defendants, which includes a claim for damages for personal injuries or the other claims specified in CPR r 44.13(1)(b) and (c), but may also have other claims brought by the same claimant within that single claim. Argument has not been addressed to the question of whether QOCS should apply to a subsidiary claim for damages not including damages for personal injuries made by such a claimant against another defendant in the same action as the personal injury claim. I would prefer to leave that question to a case in which it arises. CPR r 44.13 is not applying QOCS to the entire action in which any such claim for damages for personal injuries or the other claims specified in CPR Rule 44.13(1)(b) and (c) is made.”
    1. This is a clear decision that the term “proceedings” in CPR 44.13 refers to all of the claims made by a claimant against a single defendant, when one such claim is a claim for personal injury. Thus, in a mixed claim case, QOCS applies pursuant to the basic rule in CPR 44.14, unless one of the exceptions in CPR 44.15 or CPR 44.16 applies.
    1. Ms Bell accepts that this is so. Indeed, in a case like the present (but unlike Wagenaar) of a single claimant and a single defendant, without complications such as third-party proceedings or counterclaims, it would be impossible to contend otherwise. The QOCS regime recognises the concept of a mixed claim and distinguishes between “the proceedings” and claims for personal injuries (using that term to encompass all claims described in CPR 44.13(1)), as is obvious from the language of CPR 44.13 (“proceedings which include a claim for damages … for personal injuries …”). Ms Bell accepted that the same is true of CPR 44.16.
    1. The issue, therefore, is whether “proceedings” in CPR 44.15 should be given a different meaning from that which it bears elsewhere in the QOCS rules. That is not a promising submission. As Lord Sumption explained in Plevin:
“22. … In the ordinary course, there is a presumption that the same expression used in different provisions of a statute has the same meaning wherever it appears. There is also a presumption that differences in the language used to describe comparable concepts are intended to reflect differences in meaning. But the latter presumption is generally weaker than the former, because the use of the same expression is more likely to be deliberate. …”
    1. While I would accept that it is possible that the term “proceedings” has a different meaning in CPR 44.15 from that which it bears elsewhere in the QOCS rules, I would not accept that this is so unless it is necessary in order to give effect to the purposes of the QOCS rules. In general, we should proceed on the basis that the term has been used consistently across the QOCS rules unless the contrary is clearly shown. The natural meaning of the term “proceedings” should not be qualified further than the context and purposes of the QOCS regime require.
    1. Ms Bell submitted that it is necessary to give “proceedings” in CPR 44.15 a narrower meaning in order to give effect to what I have described as the second purpose of the QOCS regime, namely to deter frivolous claims. It should be noted, however, that this purpose is not to deter claims which fail or are likely to fail, or even claims which are susceptible to reverse summary judgment under CPR 24. The deterrent aspect of CPR 44.15 is confined to claims which have been struck out on one of the three grounds set out in the rule. Essentially these are claims which should not have been brought in the first place, or where the claimant’s conduct of the claim merits the severe sanction of striking out.
    1. I would note in passing, therefore, that it may be important whether a personal injury claim has been struck out or whether it has been dismissed by way of reverse summary judgment. Sometimes defendants seek to get rid of unmeritorious claims at an early stage, without distinguishing between these two procedures. But it is only when the claim has been struck out on one of the grounds there mentioned that CPR 44.15 applies.
    1. In my judgment it is not necessary to interpret “proceedings” in CPR 44.15 as referring to the personal injury claim alone in order to give effect to this deterrent purpose. CPR 44.16 enables this purpose to be achieved in a mixed claim case where the personal injury claim is struck out. Mr Lyon accepted and indeed urged this analysis upon us, albeit that this was contrary to the position taken by the claimant in the court below. Thus, in a mixed claim case where the personal injury claim is struck out at an early stage but the proceedings continue, CPR 44.16(2)(b) enables the court to order that a costs order made against the claimant may be enforced to its full extent. That is because such a case is one where “a claim is made for the benefit of the claimant other than a claim to which this Section applies”, that is to say, a non-personal injury claim is made (Brown v Commissioner of Police at [31] to[33]).
    1. There is, 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 is appropriate to do so. That will often be the convenient course. The question of enforcement of the order can then be deferred to the conclusion of the proceedings, to be dealt with pursuant to CPR 44.16 – or, if the surviving claim succeeds, by being set off against any damages pursuant to CPR 44.14.
    1. It is true that in such a case the permission of the court must be obtained before enforcement under CPR 44.16 can take place, and that permission will only be given to the extent that the court considers it just to do so. Accordingly, it follows that a claimant in a mixed claim case where the personal injury claim is struck out is not in quite as good a position as a claimant where a personal injury claim is struck out and there is no other claim. However, as the court has power in the mixed claim case to make whatever order it considers will meet the justice of the situation, it is impossible to say that the claimant’s interpretation results in injustice or defeats the purpose of the QOCS rules.
    1. I respectfully disagree, therefore, with the judge’s view that her interpretation is necessary to further the purposes of the QOCS regime. CPR 44.16 can bear the load which the judge envisaged could only be borne by CPR 44.15.
    1. For the same reason, the defendant derives no assistance from resort to the overriding objective in CPR 1.1. CPR 1.2 requires the court to interpret the rules in order to give effect to the overriding objective, but as the objective is “to deal with cases justly and at proportionate cost”, and as CPR 44.16 enables the court to make whatever order it considers just in a mixed claim case where the personal injury claim is struck out, there is no need to give “proceedings” in CPR 44.15 a different meaning from that which it bears elsewhere in the QOCS rules in order to do so.
    1. The decision of this court in Brown v Commissioner of Police describes how the CPR 44.16 discretion should be exercised in a mixed claim case. Lord Justice Coulson (with whom Lord Justices McCombe and David Richards agreed) explained that the QOCS protection which would have been available for the personal injury claim if it had stood alone will be a relevant and often important factor to take into account:
“57. But in such proceedings, the fact that there is a claim for damages in respect of personal injury, and a claim for damage to property, does not mean that the QOCS regime suddenly becomes irrelevant. On the contrary, I consider that, when dealing with costs at the conclusion of such a case, the fact that QOCS protection would have been available for the personal injury claim will be the starting point, and possibly the finishing point too, of any exercise of the judge’s discretion on costs. If (unlike the present case) the proceedings can fairly be described in the round as a personal injury case then, unless there are exceptional features of the non-personal injury claims (such as gross exaggeration of the alternative car hire claim, or something similar), I would expect the judge deciding costs to endeavour to achieve a ‘cost neutral’ result through the exercise of discretion. In this way, whilst it will obviously be a matter for the judge on the facts of the individual case, I consider it likely that, in most mixed claims of the type that I have described, QOCS protection will – in one way or another – continue to apply. …
58. It is however important that flexibility is preserved. It would be wrong in principle to conclude that all mixed claims require discretion to be exercised in favour of the claimant, because that would lead to abuse, and the regular ‘tacking on’ of a claim for personal injury damages (regardless of the strength or weakness of the claim itself) in all sorts of other kinds of litigation, just to hide behind the QOCS protection (as Foskett J warned in Siddiqui [2018] 4 WLR 62).”
  1. It is clear from this guidance that, when the court comes to consider what order to make under CPR 44.16 at the conclusion of the present proceedings, it will be able to take account of the fact that the personal injury claim was struck out on one of the grounds identified in CPR 44.16 and make whatever order is just in the light of that fact, together with all the other circumstances of the case.