A litigant with a mixed claim will not have to pay costs immediately for one part of their claim which has been thrown out already.
In Achille v Lawn Tennis Association Services Ltd the Court of Appeal agreed that it was premature for the costs order to be enforced now against claimant Richard Achille. Instead the court should wait until the conclusion of proceedings to decide what costs should follow.
The case came down to the meaning of the term ‘proceedings’ and how that meaning should be applied to the qualified one-way costs shifting (QOCS) rules.
QOCS protection ensures that personal injury claimants are not out of pocket as a result of bringing legal proceedings, but the rules allow a defendant to enforce a costs order where the case had no reasonable grounds.
In this case, Achille claimed damages for alleged psychiatric injury and injury to feelings arising from his expulsion from Moseley Tennis Club in Birmingham.
In 2019, the claim for damages for psychiatric injury was struck out by District Judge Dickinson but the claim for injury to feelings remains to be determined. The district judge ordered Achille to pay the defendant’s £4,250 costs of the failed claim and said the defendant could enforce the order to its full extent without needing the permission of the court.
Her Honour Judge Emma Kelly, sitting in the Birmingham County Court, agreed with the defendant’s interpretation. The judge found that the word ‘proceedings’ could refer to the personal injury claim alone and ruled there were ‘no sound policy reasons’ why a claimant with a non-personal injury claim tacked on should be in a better position than a litigant with just one unmeritorious claim.
On appeal, Achille submitted that ‘proceedings’ meant the entirety of the claims brought in a single action. The defendant argued that the district judge’s interpretation was consistent with the ‘overall context and purpose’ of the QOCS regime and should be applied to deter frivolous personal injury claims.
Lord Justice Males found there was no need to re-interpret ‘proceedings’ to keep in place the purpose of the QOCS regime. There was no reason why a judge striking out the original PI claim should not make an order for costs, but the question of enforcement could be deferred to the conclusion of proceedings.
He added: ‘It is clear from this guidance that, when the court comes to consider what order to make under CPR 44.16 at the conclusion of the present proceedings, it will be able to take account of the fact that the personal injury claim was struck out.’
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