Swift v Carpenter

A protective costs order falls within the court’s jurisdiction under section 51 of the Senior Courts Act 1981 and Part 44 of the Civil Procedure Rules. However, the established policy and practice is that such an order should not be made in private litigation. Wider significance for future litigants, insurers or the legal profession does not overcome the applicant’s substantial private interest. The court may adjust that policy if genuinely changed circumstances justify doing so. Independently, an application should be made promptly. Costs caused by the applicant’s own tactical decision and a delayed application weighed against relief.

The appellant pursued a personal injury claim after serious injuries caused by the respondent’s negligence. Lambert J awarded substantial damages but made no award for the additional capital cost of special accommodation, considering herself bound by Roberts v Johnstone [1989] QB 878. The appellant obtained permission to appeal on that issue. After the appeal was adjourned for further evidence, she applied for a protective costs order limiting liability for the respondent’s costs. The Personal Injuries Bar Association intervened. The central issue was whether the court’s costs jurisdiction could justify such an order in a private damages appeal, and whether the discretion should be exercised in the circumstances.

1. The application for a protective costs order was dismissed. The court had jurisdiction under section 51 of the Senior Courts Act 1981 and Part 44 of the Civil Procedure Rules, but jurisdiction did not determine whether the order should be made.
2. The starting point was the guidance in Corner House. A protective costs order is principally directed to public law litigation raising issues of general public importance, where the applicant has no private interest in the outcome. The description in R v Lord Chancellor ex p. CPAG [1999] 1 WLR 347 was incorporated into that approach.
3. Following Eweida v British Airways plc [2009] EWCA Civ 1025, the policy and practice of the courts is that a protective costs order should not be made in private litigation. The present proceedings were ordinary private litigation for personal injury damages. Their wider importance did not alter the appellant’s overwhelming private interest. The court agreed with Maugham v Uber London Limited [2019] EWHC 39 (Ch) that Eweida was binding authority. Observations in Unison v Glen Kelly [2012] EWCA Civ 1148 concerned a different application and could not undermine Eweida.
4. Even if a more flexible approach were available, the order would have been refused. The adjournment and additional evidence resulted from the appellant’s own tactical decision, and the application was made only after substantial further costs had been incurred. Applications for such protection should be made as soon as possible.
5. The court noted CPR 52.19, which permits an appeal court in qualifying proceedings to limit recoverable appeal costs. That provision did not provide the order sought and was not relied upon by the appellant.

1. Court of Appeal (Civil Division): The application for a protective costs order was dismissed in Swift v Carpenter [2020] EWCA Civ 165.
2. High Court of Justice, Queen’s Bench Division: Lambert J awarded damages and made no award for the additional capital cost of special accommodation, in Swift v Carpenter [2018] EWHC 2060 (QB). Permission to appeal was granted.