A claimant who discontinued his personal injury case on the morning of trial should still be entitled to costs protection, the Court of Appeal has ruled.

The defendant in Excalibur & Keswick Groundworks Ltd v McDonald had sought to argue that claimant Michael McDonald should lose the cover of qualified one-way costs shifting for wasting court resources.

But Lady Justice Nicola Davies ruled that the defendant was seeking to remove the claimant’s right to the protection of the ‘broad-based and mechanical provisions’ of the QOCS scheme. In this case, the claimant’s conduct did not ‘begin to meet the degree of seriousness’ that would require the court to order a costs penalty.

The claimant, working as a groundworker at a site in Newcastle, had brought proceedings following an accident while climbing a ladder. On the morning of the trial, the district judge raised issues around the ownership of the ladder and inconsistency in the claimant’s account between his pleaded case, his witness statement and entries in the medical records.

After a short adjournment, the claimant made the decision to discontinue, but the defendant then applied to set aside the notice of discontinuance and strike out the claim on the grounds that McDonald had obstructed the ‘just disposal of the proceedings’. As a result, it was submitted, he was not entitled to QOCS protection.

A district judge found in favour of the defendant but that decision was overturned by a circuit judge.

On appeal, the defendant argued that civil procedure rules offered ‘broad discretion’ which could be applied to further the overriding objective that cases are dealt with justly and at proportionate cost. If a litigant conducted themselves, it was submitted, in a way that impedes the just disposal of the proceedings to a high degree then they should not be able to retain their QOCS protection.

The claimant contended that the defendant had no legitimate interest in the continuation of proceedings. Lawyers submitted that the policy behind QOCS was premised on the basis that defendants who win at trial will have to bear their own costs as the practical consequence.

Davies agreed that QOCS provided a ‘broad scheme of protection’ for claimants preventing enforcement of costs orders against them.

She added: ‘What the claimant did, following an intervention by the district judge, and in all likelihood having received legal advice, was to recognise inconsistencies as between his witness statement and the pleaded case, weigh up his prospect of success and having done so, made the decision to discontinue.

‘It is a course of conduct taken by many litigants and in my judgment does not begin to provide the powerful reasons upon which a notice of discontinuance could or should be set aside.’

 

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