Owen Tabbitt v Thomas Clark

Qualified one-way costs shifting rules govern the enforceability of costs orders and need not be restated in a declaratory order where their meaning is undisputed. A court is not generally required, when disposing of a claim, to determine how a costs order may be enforced against future events or future rule changes. Enforcement is ordinarily downstream from the costs order. Finality protects against alteration or challenge to orders already made; it does not require every future consequence to be settled immediately. Procedural rules may have retrospective effect, subject to transitional provisions. Policy choices about amending the Civil Procedure Rules are for the Civil Procedure Rules Committee.

The appellant suffered serious injury in a road accident claim and later accepted the respondent’s Part 36 offer. The parties agreed the incidence of costs, against the background of qualified one-way costs shifting. Before the costs had been assessed or agreed, the appellant sought a declaration under rule 44.14 that the respondent could not enforce his costs order against him, anticipating a possible retrospective rule change.

The High Court judge accepted that she had power to make the declaration but declined to do so in her discretion. The appeal concerned whether the declaration should have been made to preserve the QOCS position as it stood at the date of judgment.

The appeal was dismissed. The single substantive judgment was delivered by Lord Justice Lewison, with whom Lord Justice Peter Jackson and Lady Justice Nicola Davies agreed.

1. The QOCS rules themselves govern enforcement. Although rule 44.14(2) postponed enforcement until the proceedings had concluded and costs had been assessed or agreed, the judge was not required to reproduce that effect in a declaration where there was no dispute about the meaning of the rules. The general costs power under section 51 of the Senior Court Act 1981 did not require the court to decide the enforceability of a future costs order.
2. Enforcement is ordinarily downstream from the making of a costs order. The principle of finality concerns altering or challenging orders already made. It does not require every future consequence of an order to be determined at the same time, and it has no special force merely because the claim is a personal injury claim.
3. There is no general presumption against retrospective changes to procedural rules. If the Civil Procedure Rules Committee considered a retrospective amendment unfair in particular cases, it could provide transitional arrangements. The approach in Adelekun v Ho [2021] UKSC 43 left policy correction and amendment of the rules to the Committee.
4. The judge therefore had a wide discretion to decline the declaration and leave the matter to the Committee. The later Civil Procedure (Amendment) Rules 2023 amended rule 44.14, but rule 1(3) limited the amendments to claims issued on or after 6 April 2023. The appellant’s claim was consequently unaffected, and even a successful appeal would not have made the respondent’s costs order enforceable.

• Court of Appeal (Civil Division): In Owen Tabbitt v Thomas Clark [2023] EWCA Civ 744, the court dismissed the appeal.
• High Court of Justice, King’s Bench Division: On 1 December 2022, Her Honour Judge Walden-Smith, sitting as a High Court judge, accepted power to make the requested declaration but declined to do so in the exercise of her discretion.