QOCS

Question 1

QOCS
1. CPR 44.12(a) – set off –

2. CPR 44.13(B) – applies to

Answer 1

1. CPR 44.12(a) – set off – where a party entitled to costs but also ordered to pay costs – court may assessed costs that the party is liable to pay and set off the amounts against each other and direct payment of balance
2. CPR 44.13(B) – applies to PI/CN & FA but not PD & PCFA (pre-commencement funding arrangements - essentially CFA pre-01/04/13). Also, does not displace (Gen Rule CPR 44.2(2)(1) Courts discretion and CPR 44.2(2)(a) – loser pays) but does limit when and how can be enforced.

Question 2

Enforcement – no permission
3. CPR 44.14(1) –

4. CPR 44.14(3) –
5. CPR 44.15(1)(a)(b)(c) –

Answer 2

Enforcement – no permission
3. CPR 44.14(1) – costs < damages – can be enforced to extend that costs does not exceed damages to C e.g. where C fails to beat D’s Part 36 offer
4. CPR 44.14(3) – ended and costs assessed/agreed – can only enforce costs order after proceedings concluded and assessed or agreed
5. CPR 44.15(1)(a)(b)(c) – struck out/abuse/conduct -struck out because no reasonable grounds for brining claim, abuse of process, conduct of C (or those acting for) - obstructing

Question 3

Enforcement – permission
6. CPR 44.16(1) –
7. CPR 44.16(2)(a) –
8. CPR 44.16(2)(b) –
9. PD 46 para 12.2 –
10. S.57 CJ&CA 2015 –

Answer 3

Enforcement – permission
6. CPR 44.16(1) – Fundamental Dishonesty
7. CPR 44.16(2)(a) – Someone Else – Not C or dependent under FAA 1976 S.1(3)
8. CPR 44.16(2)(b) – Something Else – mixed claims (e.g. property and PI)
9. PD 46 para 12.2 – Examples of something else (e.g. subrogated claims and credit hire)
10. S.57 CJ&CA 2015 – refers to Fundamental Dishonesty

Question 4

Case Law – Set Off re CPR 44.12(a) (H, C, F , H - Howe carted faulkner ho but change)

H v M (2017) –

C v V E (2018) -

F v SS for E&I (2020) –

H v A (2021) –

Therefore, No real ‘risk’ to Claimants to accept Part 36 offer late
BUT
For claims issued after 6th April 2023, effect of both Cartwright and Ho has been overruled by amendments to CPR 44.14 -44.17.

Now costs can be

Answer 4

Casse Law – Set Off re CPR 44.12(a) (H, C, F , H - Howe carted faulkner ho but change)
Howe v MIB (2017) – Court does have jurisdiction under CPR44.12 to order set off
Cartwright v Venduct Engineering Ltd (2018) - Settlement by late acceptance of Part 36 offer was not an order for damages = no enforcement
Faulkner v SS for E&I (2020) – Exercise of discretion to set off depends on facts of case
Ho v Adelekon (2021) – cannot set off costs against costs – only against damages
Therefore, No real ‘risk’ to Claimants to accept Part 36 offer late
BUT
For claims issued after 6th April 2023, effect of both Cartwright and Ho has been overruled by amendments to CPR 44.14 -44.17.

Now costs can be enforced, W/O permission, against damages AND ‘agreements to pay or settle a claim’. ‘Set-off’ is also permitted. Late acceptance of Part 36 may now leave claimant exposed to enforcement of defendant’s costs despite QOCS

Question 5

Case Law – application of QOCS re CPR 44.13(b) (Italian sounding town)
C v E (2017) –

Answer 5

Case Law – application of QOCS re CPR 44.13(b) (Italian sounding town)
Catalano v Espley-Tyas Developments (2017) – C’s could not terminate one CFA and enter another to gain QOCS protection

Question 6

Case Law - Enforcement – no permission (W, B, K – struck at wall and flew underwear)

W v B –

B –

K v P -

Answer 6

Case Law - Enforcement – no permission (W, B, K – struck at wall and flew underwear)

Wall v British Canoe Union (2015) – C not eligible for QOCS
protection as claim struck out on summary judgment application

Brahlika v Allianz Insurance (2015) – Conduct so struck out – C did not appear at trial

Kite v Phoenix Group (2015) - Unfettered discretion of Judge - Notice of Discontinuance set aside and case struck out

Question 7

Case Law – Enforcement – permission (G, C, W, W – Dishonest duck ate apple and wagged and wagged)

G v H & S –

C v A –

W & W W - 2 part test –

W v W -

Answer 7

Case Law – Enforcement – permission (G, C, W, W – Dishonest duck ate apple and wagged and wagged)

Gosling v Hailo & Screwfix (2014) – exaggerated symptoms = fundamental dishonesty

Creich v Apple Security Group (2015) – fundamental dishonesty - Pursuing claim against weight of evidence may be fundamentally dishonest

Waggett & Witold Warchalowski (2016) - 2 part test – 1) is there dishonesty 2) is it fundamental to issues of the claim

Wagenaar v Weekend Travel Ltd (2015) -QOCS protection did not extend to Part 20 claims

Question 8

Case Law – exception to QOCS where permission (mixed police)

R J v M P –

B v M – COA –

Note: above 2x cases - Claims against police seeking ‘aggravated damages’ or damages for ‘misfeasance in public office’ are not protected by QOCS

Answer 8

Case Law – exception to QOCS where permission (mixed police)

Robert Jeffreys v Metroplis Police (2017) – re nothing to support proposition that PI and Non-PI claims has to be divisible

Brown v Metropolis Police (2019) – COA – QOCS does not auto apply to mixed claims

Note: above 2x cases - Claims against police seeking ‘aggravated damages’ or damages for ‘misfeasance in public office’ are not protected by QOCS