Wickes Building Supplies Ltd v Blair (No.2 : Costs)

The fixed-costs regime governing a low-value personal injury claim at first instance does not govern the costs of an appeal. The appellate court instead has a discretion under rule 52.19 of the Civil Procedure Rules 1998 to limit recoverable appeal costs.

An appeal concerning the outcome of a personal injury damages claim, or the procedure by which that claim is determined, forms part of the same “proceedings” for qualified one-way costs shifting. That protection applies to a second appeal and to an appeal brought by the defendant. It also applies where the appellate court declines to limit recoverable costs under rule 52.19.

The claimant pursued a low-value workplace personal injury claim under the applicable pre-action protocol. After the district judge awarded him £2,000 damages, the circuit judge allowed his appeal, dismissed the protocol claim and ordered the defendant to pay appeal costs.

In [2019] EWCA Civ 1934, the Court of Appeal allowed the defendant’s further appeal, set aside the circuit judge’s order and reinstated the district judge’s decision. The parties agreed that the claimant should pay the costs of both appeals but disputed the applicable costs regime and enforceability.

The court determined whether the fixed-costs rules applied to the appeals, whether costs should instead be limited under rule 52.19 of the Civil Procedure Rules 1998, and whether qualified one-way costs shifting restricted enforcement.

1. Costs ordered for the appellant, but enforcement barred. The respondent was ordered to pay the appellant’s costs of the appeal to the circuit judge and the further appeal to the Court of Appeal, to be assessed if not agreed. The order was subject to qualified one-way costs shifting and was not enforceable against the respondent.

2. The fixed-costs regime in Section III of Part 45 of the Civil Procedure Rules 1998 applies to protocol proceedings at first instance, not to appeal costs. Section 51 of the Senior Courts Act 1981 confers a general costs discretion subject to rules of court. Rule 52.19 supplies the relevant appellate rule and permits, rather than requires, an appeal court to limit recoverable costs where recovery was limited or excluded below.

3. The court declined to exercise that discretion. The respondent’s first appeal sought to overturn an order obtained in his favour by relying on his own procedural default. That appeal was wholly unmeritorious and caused unnecessary costs. The disparity between the parties’ means and wider access-to-justice considerations did not justify limiting recovery. The appeal also raised a point of practice capable of affecting substantial numbers of protocol claims, bringing it at least arguably within rule 52.19(3).

4. Qualified one-way costs shifting nevertheless governed enforcement. For rule 44.13, an appeal concerning either the outcome of a personal injury damages claim or the procedure by which that claim is to be determined forms part of the same “proceedings”. That construction promotes the regime’s purpose of facilitating access to justice and accords with Parker v Butler [2016] EWHC 1251 (QB).

5. The protection applies even where the court is hearing a second appeal, the original defendant brought the appeal, and the court declined to limit recoverable costs under rule 52.19. Hawksford Trustees Jersey Ltd v Stella Global UK Ltd [2012] EWCA Civ 987 and Wagenaar v Weekend Travel Ltd [2014]EWCA Civ 1105 were consistent with this conclusion because each required “proceedings” to be construed in accordance with the purpose of the particular regime.

1. Court of Appeal (costs): In [2020] EWCA Civ 17, ordered the respondent to pay the costs of both appeals, subject to assessment, but held the order unenforceable under qualified one-way costs shifting.

2. Court of Appeal (substantive appeal): In [2019] EWCA Civ 1934, allowed the defendant’s appeal, set aside the circuit judge’s order and reinstated the district judge’s order.

3. Winchester County Court, circuit judge: Allowed the claimant’s appeal, set aside the district judge’s order, dismissed the protocol claim and ordered the defendant to pay the claimant’s appeal costs.

4. Winchester County Court, district judge: Awarded the claimant £2,000 damages and £1,080 costs in the Stage 3 protocol proceedings.