The Issues: Mr Parker (the claimant) appealed against the dismissal of his claim for personal injury arising from a road traffic accident and lost this appeal in May 2016. The Defendant then sought an order for his costs of the appeal, assessed at £2,795.21.

The original claim had the benefit of Qualified One Way Costs Shifting (QOWCS) and the costs order from that claim could not be enforced without permission of the Court as per CPR 44.14. The issue here was whether QOWCS protection would extend to cover an appeal or if the appeal would be subject to the ordinary costs rules.

To make this decision Mr Justice Edis considered CPR 44.13 which provides:

          “(1) This section applies to proceedings which include a claim for damages –

1. For personal injuries
    

And he stated that the main issues to be considered where:

1. Are appeals part of the original proceedings or are they classed as separate proceedings?
2. If appeals are a separate set of proceedings, would this appeal still be considered as a claim for damages for personal injuries?
    

Held: Mr Justice Edis relied on Wagenaar v. Weekend Travel Limited [2014] which established that the word "proceedings" in CPR 44.13 should be taken with reference to the purpose behind the Jackson Reforms.

The Judge stated: “An appeal by the claimant against the dismissal of his claim for personal injuries is a means of pursuing that claim against the defendant or defendants who succeeded in defeating that claim at trial…there is no difference between the nature of the claimant at trial and the appellant on appeal... and the QOWCS regime exists for his benefit as the best way to protect his access to justice to pursue a personal injury claim.”

Justice Edis also considered Hawksford Trustees Jersey Limited v. Stella Global UK Limited and another [2012] which decided that the question of whether an appeal is part of the original proceedings depends “…on the context in which the question arises and the purpose of any provisions which have to be construed in order to answer it.”

Considering both cases Justice Edis held that for purpose of CPR 44.13 an appeal in a personal injury claim is part of the proceedings which include a claim for personal injuries and he felt it was difficult to imagine a hearing where this was not the case.
Justice Edis concluded that any order for costs against the claimant in an appeal which concerned the outcome of a personal injury claim will only be enforceable to the extent permitted by QOWCS and in this case the costs order was not enforceable.

Comment: The Jackson Reforms and particularly QOWCS were introduced to promote access to justice. If a claimant’s access to justice relies on QOWCS protection then by restricting this protection to not cover appeals, and exposing them to the risk of the costs of any appeal, you are limiting their choices and access to justice. This goes against the very reasons for the Jackson Reforms. Of course, any appeal will need judicial approval first and so this barrier prevents claimants making unmerited appeals and taking advantage of the protection.

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