Richard Achille v Lawn Tennis Association Services Limited

For qualified one-way costs shifting, “proceedings” ordinarily means all claims brought by one claimant against one defendant in a single action. The term bears that meaning consistently across the QOCS rules unless their context and purposes clearly require otherwise.

Accordingly, striking out only the personal injury element of a mixed claim does not engage rule 44.15 while another claim remains pending. A costs order may be made and assessed, but enforcement should await the conclusion of the proceedings. The court may then permit enforcement under rule 44.16(2)(b) to the extent that justice requires, or apply the ordinary set-off mechanism under rule 44.14.

The claimant brought claims alleging negligence, racial victimisation and harassment. He sought damages for psychiatric injury and injury to feelings. The psychiatric injury claim was struck out under rule 3.4(2)(a), but the injury-to-feelings claim remained pending.

The district judge ordered the claimant to pay £4,250 costs and permitted immediate enforcement under rule 44.15(1). Her Honour Judge Emma Kelly upheld that interpretation in Birmingham County Court.

The claimant appealed. The central issue was whether “the proceedings” in rule 44.15 meant only the personal injury claim or all claims brought by the claimant against the defendant in the action.

1. Appeal allowed unanimously. “Proceedings” in rule 44.15 means all claims brought by a claimant against a single defendant in the action. It does not mean only the personal injury element of a mixed claim. Lord Justice Edis and Lord Justice Baker agreed with Lord Justice Males.

2. The ordinary meaning of “proceedings” is synonymous with an action. Its precise scope depends on context and purpose, but the natural meaning should be qualified no further than the QOCS regime requires. There is a presumption that the same expression bears the same meaning throughout the QOCS rules. The Court applied Plevin v Paragon Personal Finance Ltd (No 2) [2017] UKSC 23 and Wagenaar v Weekend Travel Ltd [2014] EWCA Civ 1105.

3. The QOCS context requires the exclusion of third-party claims, contribution claims and counterclaims because they fall outside the regime’s purposes. It does not require the personal injury element of a claimant’s mixed claim to be treated as separate proceedings. Rule 44.13 distinguishes “proceedings” from the personal injury claim included within them.

4. Rule 44.15 is confined to proceedings struck out on one of its three specified grounds. It does not extend to every unsuccessful claim or even to a claim disposed of by reverse summary judgment. Because the claimant’s injury-to-feelings claim remained pending, the proceedings had not been struck out and immediate enforcement under rule 44.15 was unavailable.

5. This construction does not undermine the deterrent purpose of QOCS. Rule 44.16(2)(b) supplies the appropriate mechanism where the personal injury element of a mixed claim has been struck out. The costs may be ordered and summarily assessed at that stage, while enforcement is deferred until the proceedings conclude. The court may then permit enforcement to the extent it considers just. If the surviving claim succeeds, the costs may instead be set off under rule 44.14.

6. When exercising the rule 44.16 discretion, the protection which the personal injury claim would have received if brought alone remains an important consideration. The discretion must nevertheless remain flexible. The court may consider the strike-out and all other circumstances when deciding whether enforcement is just.

1. Court of Appeal (Civil Division): The claimant’s appeal was allowed by [2022] EWCA Civ 1407. The Court held that the remaining claim meant the proceedings had not been struck out for the purposes of rule 44.15.

2. Birmingham County Court: Her Honour Judge Emma Kelly upheld the interpretation that “proceedings” in rule 44.15 meant the personal injury claim alone.

3. District Judge: District Judge Dickinson struck out the psychiatric injury claim under rule 3.4(2)(a), ordered payment of £4,250 costs and held that immediate enforcement was permitted by rule 44.15(1). The injury-to-feelings claim remained pending.