Sharon Challis v Howard Bradpiece

Qualified one-way costs shifting applies to detailed assessment proceedings arising from a personal injury claim. The word “proceedings” in CPR 44.13 must be construed purposively and contextually, rather than by a purely grammatical approach. Although detailed assessment has a distinct process and jurisdictional gateway, it remains sufficiently connected with the underlying personal injury proceedings for QOCS to apply. The principal purpose of QOCS is to prevent a personal injury claimant incurring a net liability as a result of pursuing the claim. That purpose would be materially undermined if a defendant could enforce costs awarded in detailed assessment proceedings against a claimant who recovered no enforceable order for damages.

The claimant’s clinical-negligence personal injury claim was compromised by acceptance of a Calderbank offer, with the settlement recorded in a Tomlin order. The order provided for payment of damages through its schedule and awarded the claimant her costs. The parties could not agree those costs, so detailed assessment proceedings followed.

The claimant failed to beat the defendant’s Part 36 offer. The defendant consequently obtained an order for the costs of the detailed assessment. The issue was whether the QOCS regime prevented enforcement of that order. The court determined the issue on written submissions.

1. Construction of CPR 44.13. The question was whether detailed assessment proceedings are “proceedings which include a claim for damages ... for personal injuries”. The competing constructions were finely balanced, but the claimant’s construction was preferred.
2. The court accepted that detailed assessment is a distinct phase with its own commencement procedure and jurisdictional gateway. That distinction did not require it to be treated as outside the proceedings for QOCS purposes. Authorities concerning the separate nature of detailed assessment were considered in their context.
3. The decisive considerations were the legislative purpose of QOCS and the Supreme Court’s analysis in Ho v Adelekun. QOCS is designed to prevent a claimant incurring a net liability as a result of a personal injury claim. Excluding detailed assessment would potentially leave a claimant with an enforceable net liability for the defendant’s costs, particularly where the substantive claim had settled without an order for damages.
4. The court applied the modern purposive approach to statutory interpretation. A construction may be somewhat strained yet permissible where it better gives effect to the legislative purpose. The claimant’s construction was not so strained that it had to be rejected. The contrary grammatical construction would give insufficient weight to the purpose identified in the QOCS authorities.
5. Accordingly, QOCS precluded enforcement of the defendant’s costs of the detailed assessment. Permission to appeal was granted because the point clearly satisfied the test for permission.