The Issues

The claimant brought a personal injury claim against the defendant.  The action was subject to QOCS.  The defendant made a Part 36 offer which the claimant accepted out of time, some 9 months later.

The parties agreed that the claimant could recover his costs up to date of expiry of the Part 36 offer and that the defendant was also entitled to costs but that this was subject to the provisions of QOCS, i.e. that these could not be enforced without the leave of the court. The claimant sought a declaration in the following form:

"Pursuant to rule 44.14 CPR the Defendant is not permitted to enforce (including by way of set-off) the costs Order in paragraph 3 of this Order in his favour against the Claimant."

CPR 44.14 (2) provides that:

“Orders for costs made against the claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed”.

At first instance, the only issue before the court was whether to make the declaration.    However, at the time of the judge’s judgement, changes to the QOCS rules were under consideration by the Civil Procedure Rules Committee and on 7^th October 2022 the CPRC approved an amendment to the rules which would permit enforcement of a costs order in the defendant’s favour, against an order or agreement for damages or costs in the claimant’s favour.

Held

At first instance Judge Walden-Smith declined to make the order in the form of the declaration sought by the claimant.

The Court of Appeal upheld the judge’s refusal to make a declaration that would have the effect of preserving the existing court rules if the rules were later to change. The Court of Appeal was not prepared to protect the claimant’s current position regarding enforcement of his liability for the defendant’s costs, following late acceptance of the defendant’s Part 36 offer.

Comments

By seeking the declaration, the claimant aimed to guard against the possibility of a future rule change and his potential liability for costs following the late acceptance of the Part 36 offer regardless of what the Civil Procedure Rules Committee might do.  It would appear that the judge acted appropriately in refusing to order the declaration which could have overridden changes to the rules.

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