BB & Ors v Moutaz Khayyat & Ors

QOCS protection is assessed by reference to the individual claimant’s claim, not merely to the proceedings viewed collectively. A claimant bringing only property, livelihood or displacement claims cannot obtain QOCS protection because another claimant in the same action alleges personal injury. Where a claimant’s claims are struck out for abuse of process, CPR 44.15(b) permits enforcement of the costs order to its full extent. The court may make distinct costs orders and interim payments on account where the claimed costs justify them. Joint and several liability is ordinarily appropriate where claimants have made common cause in the litigation, subject to any temporal distinction between groups of claimants.

The judgment concerned consequential costs orders in collective proceedings against three defendants. It followed an earlier judgment dismissing an application by four discontinuing claimants to disapply the presumptive costs rule in CPR 38.6, and an earlier order striking out the claims of four continuing claimants.

The court considered whether the discontinuing claimants could obtain QOCS protection under CPR 44.16(2)(b), whether the court should defer interim costs payments, the effect of a contractual undertaking securing costs of a jurisdiction application, the appropriate costs orders against the continuing claimants, and service of documents on claimants acting in person.

The court made costs orders and ordered interim payments totalling £1.3 million against the discontinuing claimants. It also made corresponding costs orders and interim payments against the continuing claimants. The application concerning release of the contractual undertaking was not determined and required a formal hearing.

1. QOCS and individual claims. The court rejected the submission that QOCS availability should be assessed by reference to the action as a whole. Wagenaar v Weekend Travel Ltd [2014] EWCA Civ 1105 and Brown v Commissioner of Police of the Metropolis [2019] EWCA Civ 1724 showed that the broad reference to proceedings in CPR 44.13 does not extend QOCS protection to a claimant who makes no personal-injury claim. The narrower exception in CPR 44.16(2)(b) concerns the particular claimant’s claims. The reasoning applies equally where several claimants join one action.
2. The discontinuing claimants’ pleaded claims concerned destruction of property, loss of livelihoods and forced displacement. They contained no allegation of physical or psychiatric injury. They therefore had no QOCS protection and there was no reason to defer costs decisions pending detailed assessment.
3. The court distinguished Achille v Lawn Tennis Association Services Ltd [2022] EWCA Civ 1407. That decision concerned a single claimant with mixed claims, whereas all the claims of each continuing claimant here were struck out for abuse of process. Under CPR 44.15(b), the costs orders could therefore be enforced in full.
4. The bank was entitled to a distinct costs order for the jurisdiction application and an interim payment of £500,000. The same sum was ordered on account of the balance of its costs, together with £300,000 for the discontinuance costs application. The court found £1.3 million reasonable against claimed costs of about £3.9 million.
5. Joint and several liability was appropriate because the relevant claimants had made common cause. The continuing claimants’ liability did not extend to costs of the discontinuance costs application, to which they were not parties. Their address for service remained the London address stated in their Notices of Change of Legal Representative.

This was a first-instance costs judgment following earlier orders in the same proceedings. The earlier decisions included dismissal of the discontinuing claimants’ costs application and strike-out of the continuing claimants’ claims.