It would seem that the raft of satellite litigation that was envisaged following the introduction of QOCS has not quite materialised, but this has not stopped some important decisions being made by the courts as to the application of QOCS.
Late last year we had the decision in Landau v The Big Bus Company when Master Haworth ruled in the Senior Court Costs Office that QOCS does not apply to appeals in Personal Injury cases which had commenced pre – LASPO as they related to the same "proceedings”. A sensible and logical decision you might think, certainly we thought so from an After The Event Insurance perspective.
More recently we have had the decision of the Regional Costs Judge, District Judge Phillips in the Cardiff County Court in the case of Casseldine v The Diocese of LLandaff Board for Social Responsibility (a charity) (unreported) (3 July 2015).
In Casseldine the Claimant had instructed solicitors to deal with a personal injury claim in 2012 and had entered into a Conditional Fee Agreement at that time supported by an ATE Insurance policy. Liability was disputed before her solicitors terminated their CFA in January 2013. This had the effect of also terminating the Claimant’s After The Event Insurance cover.
The Claimant subsequently instructed new solicitors and entered into a fresh CFA in August 2013, therefore post Jackson. Proceedings were issued in December 2013 and the case went to trial in December 2014 when the claim was dismissed. Not surprisingly, the Defendant’s argued that the Claimant should pay their costs. The Claimant argued that she should have the protection afforded to her by QOCS under CPR 41.13 to 44.17.
The Regional Costs Judge, District Judge Phillips held that this case could be distinguished from Landau on the basis that the proceedings were not commenced under the first (pre Jackson) CFA.
The first CFA had been terminated by the Claimant’s first solicitors, thus no success fee or indeed any costs were payable under the first CFA. The proceedings came under the second (post Jackson) CFA and had the Claimant succeeded at trial, the Defendant would not have had to pay any additional liabilities in any event.
The purpose of the rules was to achieve a quid pro quo, so that post 1st April 2013 QOCS protection applies where a Defendant is not faced with any additional liability.
Perhaps if the Claimant had succeeded with her claim at trial, the Defendant would not have argued that the QOCS provisions should have applied, in order to avoid paying a success fee or additional liability?
Both Landau and Casseldine appear to be sensible and logical decisions as what is important is when the substantive proceedings began following the commencement of a retainer with solicitors.
From an After The Event insurance point of view, this was a sensible decision. I suspect the ATE Insurance provider involved was keeping a very close eye on these proceedings as to the relevant dates of retainer and proceedings, both pre and then post QOCS.
That said, permission to appeal has been granted to the Defendant.