Costs protection will apply to first appeals in personal injury proceedings, the High Court has ruled in a judgment intended to clear up an area of confusion.
In Parker v Butler  EWHC 1251 (QB), an appeal heard in the High Court sitting in Leeds, Mr Justice Edis (pictured) noted that while the claim was ‘a small case in value terms, the issue may apply equally to very substantial claims and appears to be undecided’.
Edis said the question to be resolved was: ‘In a case where a claimant has the benefit of qualified one-way costs shifting (QOCS) at trial, is he subject to the ordinary rules as to costs on a first appeal to an appeal court, or at least where no other order is made under CPR 52.9A?’
The judge said: ‘If - as is likely to be the case here - the claimant’s access to justice is dependent on the benefit of QOCS, that access will be significantly reduced if he is exposed to a risk as to the costs of any unsuccessful appeal which he may bring or any successful appeal a defendant may bring against him.’
He noted that in appellate proceedings, permission to appeal is always required, providing a ‘filter’ that ‘affords some protection for the civil justice system and the other parties against unmeritorious proceedings’.
Edis said the issue was whether the appeal forms part of the PI proceedings, ‘or whether it is separate from them and not subject to the [QOCS] regime’.
He added: ‘To my mind there is no difference between the nature of the claimant at trial and the appellant on appeal. He is the same person, and the QOCS regime exists for his benefit as the best way to protect his access to justice to pursue a personal injury claim.
‘To construe the word “proceedings” as excluding an appeal which was necessary if he were to succeed in establishing the claim which had earlier attracted costs protection would do nothing to serve the purpose of the QOCS regime… .
‘In my judgement, for the purposes of the QOCS regime, any appeal which concerns the outcome of a claim for damages for personal injuries or the procedure by which it is to be determined is part of the proceedings as defined in CPR 44.13.
‘Therefore an order for costs against the claimant in favour of a defendant will only be enforceable to the extent permitted by the QOCS regime… For these reasons the costs order which I have made will not be enforceable.’