Costs Litigation Blog

In this article, Henry King considers the decision in Challis v Bradpiece [2024] EWHC 1124 (SCCO)

Facts

The fact pattern is routine. 

The Claimant brought a personal injury claim against the Defendant which successfully settled by way of a Tomlin order which provided for the Claimant’s costs to be assessed if not agreed. The costs were not agreed. 

Following a detailed assessment, the Defendant bettered a Part 36 offer made in respect of costs. Accordingly, it was entitled to its costs of the detailed assessment process. 

However, this was a QOCS case. 

Arguments

Very briefly, the Claimant argued that those costs could not be enforced against him (pursuant to the authorities of Cartwright and Ho). 

The Defendant argued that QOCS did not apply to detailed assessments (pursuant to its distinct jurisdictional basis, a strict and grammatical reading of the civil procedure rules, and indeed Parsa v Smith). This latter argument is one which the present author has deployed in argument previously but the point had never been resolved. 

Judgment 

In a careful judgment in which he acknowledged that he had “wavered several times”, the judge sided with the Claimant’s interpretation i.e., the Defendant was barred from enforcing its costs. 

But, understanding the fact that it very much is an either way decision, he also gave the Defendant permission to appeal. 

Comment 

The outcome of this matter is largely if not wholly in line with the trend developing in QOCS cases pre-April 2023 (Cartwright, Ho, Chappell, Harrison, PME) which is, in essence, QOCS prevents any enforcement absent a judgment. 

The judgment is accordingly not entirely surprising and is a feature that has been reversed by the civil procedure rules committee in respect of cases that are issued post April 2023. 

Whilst one can have a measure of sympathy for the successful Defendant here not being able to offset any of its costs of defending the detailed assessment, it is to be remembered that:

      1.    Defendant insurers argued very much in favour of QOCS during the time of the Jackson Report.  

      2.    The Defendant did not pay the Claimant’s costs of the assessment process and they clearly made a considerable saving as against the Bill. 

That being said, there are powerful reasons as to why the Defendant’s interpretation is to be preferred which are very fairly set out in the judgment. 

One reservation I have is that it encourages both parties to litigate rather than settle given that:

      1.    Claimants have little if any penalty for running 50/50 points; and

      2.    Defendants can only enforce their costs orders against a judgment meaning they must fight a trial to do so. 

This is directly contrary to the very purpose of the Civil Procedure Rules per the Court of Appeal in Diriye v Bojaj at paragraph 61 “the aim of much civil litigation is to bring about a cost effective settlement.”

Whilst it was hoped that the MPS would carry forward this appeal, despite the author’s reservations above, as it will provide much needed binding authority on the same (SCCO decisions not being binding, only persuasive), it has subsequently been confirmed that the appeal has been withdrawn. This is unlikely to be the last word on the matter.