The Claimant and Defendant were cycling in opposite directions on Lodge Lane, Keymer, West Sussex, when they collided head-on. Both sustained personal injury and both pursued claims for damages for personal injury.
The Defendant asserted that should his case fail, he was protected by Qualified One-Way Costs Shifting (“QOCS”) and any order for costs made against him could not be enforced by the Claimant.
The Claimant submitted that the proper interpretation to be given to the word “proceedings” within the context and purpose of CPR 44.13 is that it encompasses the Claimant’s claim against the Defendant, but not the Defendant’s defence of the Claimant’s claim.
Sitting at Brighton County Court, HHJ Venn disagreed with the earlier decision of HHJ Freedman in Ketchion v McEwan in respect of the same issue.
Having reviewed that earlier decision, amongst many others in coming to her decision, HHJ Venn stated;
“The defendant in this case was not an unsuccessful claimant in the claimant’s claim for damages for personal injury (he was not a claimant at all in the claimant’s claim for damages for personal injury); he was an unsuccessful defendant (and an unsuccessful claimant in his counterclaim for damages for personal injury). He only has the protection of the QOCS regime in respect of his claim for damages for personal injury and does not benefit from it in the claimant’s claim for damages for personal injury”.
We now have two competing decisions from the County Courts on this issue so it would seem likely that it will be considered by the Higher Courts at some point.
Some commentators appear to have misinterpreted this decision. The court has separated out two sets of costs. McDonnell (the defendant who then counterclaimed) lost the personal injury claim brought by Waring, and must pay the costs of unsuccessfully defending Waring's claim - there is no QOCS protection. McDonnell’s own personal injury claim (his counterclaim) was unsuccessful but those costs have the benefit of QOCS. Effectively therefore the costs must be apportioned between defending the claim and pursuing the counterclaim. If McDonnell was insured, then his solicitors will need to have put the insurers on notice and obtained their agreement to conduct the defence. McDonnell’s insurers will then have paid the costs of the unsuccessful defence.