Nathaniel Birley & Anor v Heritage Independent Living Ltd

The Court of Appeal dismissed the appellant's challenge to the hearing below and upheld the circuit judge's conclusions on costs and abuse of process. The court held that the striking out of the claim for late service was not justified as an abuse of process: negligent or inexcusable delay, without more, does not amount to an abuse of process warranting strike out. The court also held that, on the statutory scheme as enacted, a claim that includes damages for personal injury can sit alongside publication/privacy causes of action such that qualified one-way costs shifting (QOCS: CPR Part 44, rr44.13–44.17) may apply even where recovery of a success fee or an after the event (ATE) premium is, in specified circumstances, permitted by the Courts and Legal Services Act 1990 as amended by LASPO. The solicitors' pre-action conduct (including anonymised letters and errors of date) was criticised as lax but not so bad as to be an abuse of process or to justify strike out. The insurers were joined as parties under CPR r19.2(2)(b) given the practical effect of the Third Parties (Rights against Insurers) Act 2010.

This was an appeal about costs and procedural remedies arising from a data‑protection, privacy and confidence claim which included a pleaded claim for psychiatric injury. The claimants (personal representatives of the deceased) alleged that the defendant recruitment agency disclosed the deceased's previous convictions, breaching the GDPR and the Data Protection Act 2018, and also amounting to misuse of private information and breach of confidence. Remedies sought included damages (including for personal injury) and costs.

The claim form was issued in August 2021 but service was not completed before the expiry of the service period. After the claimant's death, the executors applied for a stay and filed an amended claim form; service was effected after the original deadline. The defendant applied to set aside service and strike out for late service pursuant to CPR r3.4. The District Judge set aside service and struck out the claim and, when discharging costs, concluded that the claimants' conduct amounted to an abuse of process and disapplied qualified one-way costs shifting (QOCS).

The claimants appealed to HHJ Owen (Nottingham). He held that strike out for late service was not justified on the facts: the conduct did not amount to the inordinate or wilful default or wholesale disregard for the rules necessary to treat the late service as an abuse of process. He concluded that QOCS applied because the pleaded case clearly included a claim for personal injury and the defendant had not invited the court to treat the action as a mixed claim under CPR r44.16. He varied the costs order below to reflect QOCS and awarded the claimants the costs of the appeal before him. The defendant obtained permission to appeal to the Court of Appeal on questions including whether the pre‑action conduct and alleged "cherry‑picking" between media protocols and personal injury protections amounted to an abuse of process and whether the circuit judge erred in his costs exercise.

The Court of Appeal considered: (i) whether the District Judge and the circuit judge were right to consider abuse of process and to refuse strike out; (ii) the interaction between the statutory prohibition on recovering CFA success fees and ATE premiums (as effected by LASPO and related commencement instruments) and the QOCS scheme in CPR Part 44; and (iii) costs of the appeal below. The court concluded that the errors in pre‑action conduct (anonymous letters, mistaken dates and delayed service) were deficiencies of practice but did not amount to an abuse of process requiring strike out. On the statutory point, the court explained that the regime as enacted permitted publication/privacy claims to recover a success fee and ATE premium in certain periods, while QOCS applies where a claim includes damages for personal injury; therefore both regimes could be applicable to the same proceedings in the circumstances described in the judgment (noting the temporal effect of the 2018 LASPO commencement instrument which removed the success fee exception from April 2019). The court declined to disturb HHJ Owen's costs exercise and dismissed the appeal. The insurers were joined as parties because of the practical operation of the Third Parties (Rights against Insurers) Act 2010.

Appeal dismissed. The Court of Appeal agreed with HHJ Owen that the District Judge was wrong to strike out the claim as an abuse of process: the failures in pre-action conduct and the late service did not amount to the kind of wilful or wholesale disregard of the rules required for strike out. The court held that, on the statutory scheme, QOCS can apply to proceedings which include a personal injury claim even where publication/privacy causes of action are pleaded and, in the period before April 2019, recovery of a CFA success fee (and in certain cases ATE premiums) was not incompatible with QOCS; the appellant's "cherry-picking" argument therefore failed. The circuit judge's exercise of discretion on costs, including awarding the claimants the costs of the appeal before him, was not disturbed. The insurers were properly joined under CPR r19.2(2)(b) because of the effects of the Third Parties (Rights against Insurers) Act 2010.

Appeal from Nottingham County Court (District Judge Nicolle: set aside service and strike out the claim for late service; costs ordered and QOCS disapplied). Appeal to HHJ Owen (Nottingham County Court, Appeal No NG23-023, Case No H92YX456) who allowed the appeal on the abuse point, declared QOCS applied and varied the costs order. Appeal to the Court of Appeal ([2025] EWCA Civ 44) which dismissed the appeal and upheld HHJ Owen's decisions on abuse, QOCS and costs.