A claimant who discontinued his personal injury case on the morning of a trial should still be entitled to costs protection, the Court of Appeal has ruled.

The claimant brought an action for damages as a result of a personal injury sustained after falling from a ladder at work.

At the original trial the District Judge noted some inconsistencies between the claimant’s pleaded case, his witness statement and entries in the medical records and as such suggested the matter was adjourned for 30 minutes to allow him to consider his position.

The claimant later discontinued his claim and served notices of discontinuance.

The defendant subsequently applied to set aside the notice of discontinuance and the District Judge allowed the application commenting that the claimant has dropped his claim at the “eleventh hour and fifty nineth minute … the inevitable outcome of which would be to increase Costs and take up additional Court time and resources by virtue of additional listings and hearing, using time of both Court staff and the judiciary, in addition to the incurring of today’s costs and use of court resources.” 

The claimant went on to successfully appeal the decision and this was heard by HHJ Freedman who went on to consider that the decision of the District Judge was wrong, and that the appeal should be allowed.

In addressing the issue of whether the claimant was guilty of conduct which was likely to obstruct the just disposal of the proceedings, the Judge relied upon the authority ofArrow Nominees and considered the following questions:

Whether the appellants conduct of the case rendered the just of fair trial impossible or whether his conduct corrupted the trial process so that a just result could not be achieved

He concluded that what the claimant did was to give a different account in his witness statement from that which was contained in the statement of case.  Although this had the potential to undermine the claimant’s credibility it did not demonstrate any intention by the claimant to pursue proceedings with the object of preventing a fair trial.

In commenting he also stated that it had been open to the defendants at an earlier stage, to identify any inconsistences and apply for summary judgement or for the claim to be struck out.   Had summary judgement been obtained pursuant to CPR 24 the claimant would still be entitled to QOCS protection and only had the case been struck out would CPR 44.15(c) have become engaged.

This judgement is a useful reminder to claimant solicitors to recognise any inconsistences at an early stage and to make sure the evidence ‘stacks up’ and has merits before taking the serious step of issuing proceedings, but if there are failures in this area then at least there is a low likelihood of an adverse costs order.

With that said, clearly QOCS for these types of claims remains a substantive right of the claimant to the protection provided by the QOCS scheme and here at Box Legal our ATE policies are designed for situations (apart from fundamental dishonesty) where the claimant may have to pay the defendant adverse costs.

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Here at Box Legal we have competitively priced ATE insurance policies available for all types of personal injury claims.

The number and variety of cases we arrange cover for is always increasing and so please contact us to discuss any after the event insurance requirements. We are happy to discuss and develop ATE insurance for case types we do not already insure.

If you would like to speak to us or obtain further information then please call on 0870 766 997, or email info@boxlegal.co.uk