Richard Achille v Lawn Tennis Association Services Limited

The Court of Appeal considered the meaning of the word "proceedings" in CPR 44.15, a provision within the QOCS (Qualified One-Way Costs Shifting) regime. The court held that "proceedings" should be given the same, consistent meaning across the QOCS rules and in a mixed-claim case refers to the whole claim or action rather than only the personal injury limb.

The court concluded that it was unnecessary to read CPR 44.15 as limited to the personal injury claim alone because CPR 44.16 provides the necessary and appropriate mechanism to determine whether a costs order made after a personal injury claim has been struck out may be enforced to its full extent in mixed claims. Accordingly the appeal was allowed and the narrower construction adopted below was rejected.

Background and parties: The appellant, Mr Richard Achille, brought a mixed claim against the Lawn Tennis Association Services Limited that included a claim for psychiatric injury (personal injury) and a separate claim for injury to feelings (non-personal injury). The psychiatric injury limb was struck out under CPR 3.4(2)(a) and a costs order was made against the claimant. The defendant sought to enforce that costs order in full relying on CPR 44.15. The claimant appealed the interpretation of "proceedings" in CPR 44.15.

Nature of the application/relief sought: The appeal concerned whether an order for costs made after the strike out of the personal injury claim could be enforced to its full extent immediately under CPR 44.15, or whether enforcement should await the conclusion of the whole action and be governed by CPR 44.16 or by set-off under CPR 44.14 if the claimant succeeded on the surviving non-personal-injury claim.

Issues framed:

• Whether the word "proceedings" in CPR 44.15 means the personal injury claim alone or the whole action (all claims brought by the claimant against the defendant).
• Whether a purposive construction required a narrower meaning of "proceedings" in CPR 44.15 to deter frivolous personal injury claims.
• Whether CPR 44.16 provides an adequate mechanism to address enforcement of costs orders in mixed-claim cases where the personal injury claim is struck out.

Reasoning and decision: The court reviewed the QOCS provisions (CPR 44.13–44.17), authorities including Plevin, Wagenaar, Day, Blair and Brown, and emphasised that the starting point is that "proceedings" ordinarily denotes the whole action. It accepted that the word may take a qualified meaning within the QOCS context where necessary, but held that consistency in usage across the QOCS rules should be presumed unless the context requires otherwise. The court found it was unnecessary to construe CPR 44.15 narrowly because CPR 44.16 already authorises the court, at the conclusion of proceedings, to permit enforcement of costs to the full extent where justice requires in mixed-claim situations. The guidance in Brown about exercising the CPR 44.16 discretion in mixed claims was held to be authoritative. For those reasons the Court of Appeal allowed the appeal and reversed the contrary conclusion at first instance.

Procedural posture: Appeal from Birmingham County Court (decision below: strike out of psychiatric injury claim by District Judge Dickinson and costs order; Her Honour Judge Emma Kelly had earlier accepted the narrower construction). The Court of Appeal allowed the appellant's appeal and gave the reasons above.

The appeal was allowed. The Court of Appeal held that "proceedings" in CPR 44.15 should be given the consistent meaning it bears elsewhere in the QOCS provisions, namely the whole claim/action in which a personal injury claim is included, and that CPR 44.16 provides the appropriate mechanism to deal with enforcement of costs orders in mixed-claim cases where a personal injury limb has been struck out. The narrower construction adopted below was unnecessary to achieve the purposes of QOCS and was therefore rejected.

Appeal from Birmingham County Court. At first instance the claimant's psychiatric injury claim was struck out by District Judge Dickinson (13 May 2019) and a costs order was made. Her Honour Judge Emma Kelly at Birmingham County Court (hearing 28 September 2021) upheld the view that CPR 44.15 applied to the personal injury claim alone. The decision was then appealed to the Court of Appeal, which delivered the leading judgment in [2022] EWCA Civ 1407 allowing the appeal.