QUOCS – A reminder on the new rules, by Elizabeth Francis.

This is a timely reminder to consider whether a claim should be issued prior to 6 April 2023 in order to protect claimants and their lawyers from the looming QUOCS rule changes.

The forthcoming changes to CPR 44.14 represent a shift in the balance of power towards defendants who will now, inter alia, be able to enforce costs orders made in their favour up to the aggregate amount in money terms of any settlement including where cases have concluded by way of Part 36 offers and Tomlin Orders. This increases risks to claimants such as those associated with early Part 36 offers from defendants (assessment of which are already often fraught with difficulty) and late acceptance of offers, and practitioners need to understand how to assess such risks and advise clients accordingly.

The rule change is not retrospective but effectively reverses the following decisions:

• Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654; [2018] 1 WLR 6137 (which precluded enforcement in cases where settlement had been agreed, rather than the court ordering an award of damages) and
• Ho v Adelekun [2021] UKSC 43; [2021] 1 WLR 5132 (which precluded the offset of costs against costs).

 The new rule, with the amendments shown in bold, states:

 44.14

1. Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages or agreements to pay or settle a claim for, damages, costs and interest made in favour of the claimant.
2. For the purposes of this Section, orders for costs include orders for costs deemed to have been made (either against the claimant of in favour of the claimant) as set out in rule 44.9.
3. Orders for costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.
4. Where enforcement is permitted against any order for costs made in favour of the claimant, rule 44.12 applies.
5. An order for costs which is enforced only to the extent permitted by paragraph (1) shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record.

However, please remember that Pre-Action Protocols are not optional and may result in costs consequences if cut short by proceedings being issued prematurely.

The current rules can be accessed here.

Defendants made an unsuccessful application to examine the Claimant prior to filing their defences.

Read v Dorset County Hospital NHS Foundation Trust [2023] EWHC 367 (KB) 

The Claimant developed cauda equina syndrome following a sudden disc prolapse, which then led to a critical stenosis of the spinal canal. The Claimant’s case was that delays in transferring her between hospitals put back the timing of surgery, which, had it been performed at an earlier stage, would have resulted in a better chance of complete recovery.

The Defendants took issue with causation and made an application for a stay of proceedings until 2 months after the Claimant has been examined by the Defendants’ neurosurgical expert. It was submitted that it would be a waste of costs to serve their defences with an incomplete or provisional response to the complex arguments on causation.

The Claimant resisted the application. It was put forward that the examination was not required at such an early stage of proceedings. It was further submitted that there was sufficient information available for the Defendant to plead its case.

Both parties acknowledged that the correct test was set out in Laycock v Lagoe [1997] P.I.Q.R. p 518 CA. The two-stage test comprised of the following:

(i) Do the interests of justice require the examination sought? (ii) If it is in the interests of justice, then does the party opposing the examination have a substantial reason for the test not being undertaken?

The application was unsuccessful. It was determined that the Defendants had failed to demonstrate that it was in the interests of justice to divert the case from the usual order of play in multi-track clinical negligence directions in the High Court. The Judge said that there would need to be something exceptional to depart from normal directions concerning medical examination by an opponent’s expert, as the directions have been designed to accord with the overriding objective. It was further found that there were important factual causation timelines which the Defendants can plead to. It was noted that the Claimant was not refusing to undergo an examination at all, and was content to be examined at the usual juncture. The Claimant’s vulnerability was also taken into account, pursuant to the overriding objective.

The full judgment can be accessed here.

 For any other enquiries, or to discuss instructing the Civil Team at Atlantic Chambers, please contact clerks@atlanticchambers.co.uk.