Ibiyinka Macaulay v Abdul Karmin & Anor.

Qualified one-way costs shifting (QOCS) can apply to a legally aided claimant. Legal aid costs protection concerns the amount which the claimant may reasonably be required to pay, whereas QOCS concerns enforcement. A Tomlin-order settlement is not an order for damages and interest for the purposes of CPR 44.14. Nor is an interim payment on account of damages such an order. Accordingly, neither a settlement payment made under a Tomlin order nor an interim payment can ordinarily provide the fund against which a defendant may enforce a costs order under QOCS.

The claimant brought clinical negligence proceedings against two defendants and had legal aid throughout. Liability was divided between the defendants. The first defendant obtained an order for costs on the issue of breach of duty, payable from damages awarded against the second defendant, but not enforceable without permission.

The substantive claim against the second defendant was later concluded by a Tomlin order providing for a settlement payment and costs. The first defendant sought determinations under section 11 of the Access to Justice Act 1999, including whether QOCS applied, whether the Tomlin-order payment constituted damages awarded at the conclusion of the action, and whether an earlier interim payment counted as damages for CPR 44.14.

1. QOCS and legal aid. QOCS applied to the claimant. CPR 44.13 covers proceedings including a claim for personal-injury damages and contains no exclusion for legally aided claimants. The specific exclusion in CPR 44.17 for pre-commencement funding arrangements supported that conclusion.

2. Legal aid costs protection under section 11 of the Access to Justice Act 1999 and QOCS operate differently. The former limits the amount payable following a costs determination; the latter limits enforcement. QOCS therefore did not prevent a determination under section 11.

3. Tomlin-order payment. Applying Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654, a sum payable under the schedule to a Tomlin order was not an order for damages and interest within CPR 44.14. The wording of the earlier costs order did not alter that result. Damages awarded at the conclusion of the action meant damages awarded by the court, not damages which the defendant had agreed to pay.

4. Interim payment. The £250,000 interim payment was a payment on account of damages under section 32 of the Senior Courts Act 1981 and CPR 25.6 to 25.9. The plain words of CPR 44.14, referring to orders for damages and interest, did not include an order for payment on account of damages. The payment therefore could not be used to enforce the first defendant’s costs order.

5. For the purposes of the section 11 proceedings, the claimant was entitled to QOCS and no order for damages or interest had been made against which the first defendant could enforce its costs order. Written submissions were directed on the appropriate next steps.

The judgment describes earlier clinical negligence proceedings, a split liability trial, consequential costs orders, and a later Tomlin-order settlement. It is a first-instance determination in the Senior Courts Costs Office.