Parke v Butler

For the purposes of Qualified One Way Costs Shifting, an appeal by a claimant concerning the outcome or procedure of a personal injury claim forms part of the proceedings which include that claim. A costs order made against the claimant on such an appeal is therefore subject to the QOCS restrictions. The court should construe the rules consistently with QOCS’s purpose of protecting access to justice. CPR 52.9A does not alter that conclusion where the same costs regime applies at first instance and on appeal.

The claimant appealed to the High Court against the dismissal of his personal injury claim by the Kingston-upon-Hull County Court. The appeal had been brought with permission and was dismissed on the merits, although for different reasons from those given by the trial judge.

The respondent sought his appeal costs. The claimant had the benefit of QOCS at trial, and no damages or interest had been recovered. The central issue was whether the appeal formed part of the proceedings within CPR 44.13, so that the respondent’s costs order would be unenforceable without permission under CPR 44.14.

1. Appeal dismissed. The claimant’s appeal concerned the determination of his personal injury claim. The costs order made in favour of the respondent was not enforceable because it remained subject to the QOCS regime.
2. CPR 44.13 applies to proceedings which include a claim for damages for personal injuries. The term “proceedings” has a narrower meaning in that rule than the broad procedural history of a dispute. It does not include every claim or step connected with a personal injury action.
3. However, an appeal by the claimant against dismissal of the personal injury claim is a means of pursuing the same claim against the defendant. The parties, relief and claimant’s status remain materially unchanged. Excluding such an appeal from QOCS would undermine the regime’s purpose of protecting access to justice.
4. The appropriate construction is that an appeal concerning the outcome of a personal injury claim, or the procedure by which it is to be determined, forms part of the relevant proceedings for QOCS purposes. The conclusion was reinforced because the judge corrected the trial judge’s reasoning and determined the liability issue himself, following Cooper v Floor Cleaning Machines Limited [2003] EWCA Civ 1649.
5. CPR 52.9A permits the appeal court to limit recoverable appeal costs where a different costs regime applied below. It does not affect cases where, on the proper construction of the rules, the same regime applies at first instance and on appeal.
6. The respondent’s costs were summarily assessed at £2,795.21 including VAT, but the order was stated to be unenforceable for the avoidance of doubt.

• High Court (Queen’s Bench Division): The appeal against dismissal of the personal injury claim was dismissed. The appeal costs order was subject to QOCS and was not enforceable.
• Kingston-upon-Hull County Court: Her Honour Judge Pemberton dismissed the claimant’s personal injury claim on 3 March 2015.