Qualified One Way Cost Shifting (QOCS) was introduced as part of the LASPO reforms 2012 however did not come into effect until 1st April 2013. It means that a losing Claimant will not be responsible for the Defendant’s costs, providing that there has been no dishonesty on the part of the Claimant.
The interpretation of QOCS provisions was brought into the spotlight recently in the case of Jacob Corstorphine -v- Liverpool City Council .
The case involved the Claimant who had been injured on what he claimed to be a dangerous tyre swing in a playground. Liverpool City Council was the occupier of the playground and therefore owed a duty of care to the Claimant under section 2 of the Occupiers Liability Act 1957.
The Claimant instructed his solicitors to represent him in relation to his claim for personal injury against the Defendant in August 2012. The Claimant entered into a Conditional Fee Agreement, more commonly known as a “no win no fee” agreement. The Claimant also took out an After the Event Insurance Policy to protect him from the Defendant’s costs in the event that his claim failed.
In November 2012 the Claimant’s solicitors issued Court proceedings against the Defendant following a breakdown in negotiations. The Defendant proceeded to issue a Counter Claim against a Second Defendant who had designed the tyre swing and a Third Defendant who had sold the tyre swing to Liverpool City Council.
The case proceeded to Trial and the Court dismissed both the Claimant’s claim and the First Defendant’s counter claim. The Court held that QOCS did not apply to the Claimant and ordered that he be liable for the First, Second and Third Defendants costs.
An appeal was made by the Claimant on the basis that the Judge had made a mistake in finding that the Claimant’s Pre Commencement Funding Agreement (a conditional fee agreement entered into before April 1st 2013) included the counter claim brought against the Second and Third Defendant, and that the Judge had made a mistake in finding that the First Defendant was entitled to recover their costs.
The issue to be considered was the meaning of ‘the matter that is the subject of the proceedings in which the costs order is to be made’. Did the ‘matter’ mean the claim for damages for PSLA made against the First Defendant, or did it mean the fundamental dispute, which was the claim as a whole and therefore included the secondary claim made against the Second and Third Defendant.
The Appeal Court noted that when QOCS came into force, the Claimant had no vested rights or expectations in respect of the claims made against the Second and Third Defendant, the Claimants only expectation was against the First Defendant. When the funding agreement was entered into, the sole claim was against the First Defendant and that was the underlying dispute and therefore QOCS should have been applied in relation to the claims made against the Second and Third Defendant.
The Appeal Court also found that the Trial Judge had made an error when exercising the Courts discretion, depriving the Claimant of the costs protection afforded by QOCS. There was also Court of Appeal authority which distinguishes between costs relating to a Claimants claim and cost relating to a third party claim when it comes to QOCS.
The outcome of this case provides guidelines for the interpretation of QOCS when considering whether a Claimant who entered into a Pre Commencement Funding Agreement in relation to a personal injury claim will be afforded the benefit of QOCS when there are additional claims within the proceedings. The Courts will now consider whom the Claimants vested rights and expectation was against and consider the word ‘matter’ to relate to the underlying dispute arising from the original claim.
Fundamental dishonesty is still a relatively new term applied to personal injury claims in the UK and still poses as a grey area for Solicitors, Barrister and Judges as a formal definition is not available. Due to this there is still some argument and confusion regarding when a fundamentally dishonesty finding should apply.
In the case of Wright v Satellite Information Services the Claimant was successful with a claim for damages however a major reduction was applied to the Claimant’s claim for future care and assistance as the Defendant had provided a video to the Court showing that the Claimant was not left as disabled as he claimed to be. Due to this the Claimant’s claim for future care and assistance was reduced from the £73,000 claimed to just £2,100. The Defendant therefore argued that this was an exaggeration of the claim and bid to mislead the Court and made an application for fundamental dishonesty. This application was rejected as the trial Judge, Judge Pearce, ruled that the Claimant’s case was not fatally harmed by an exaggerated claim for care costs.
This decision was appealed and was heard before Mrs Justice Yip. Mrs Justice Yip dismissed the appeal as she believed that the Defendant lacked detailed analysis of the way that the claim had been presented and stated that the Solicitors resorted to emotional language to put forward their appeal. The care claim was largely based on an expert report and Mrs Justice Yip confirmed that the Claimant had been broadly consistent in what he had said throughout the claims process and trial. Mrs Justice Yip concluded in stating that the reason for the trial Judge’s rejection of this claim was not that he found the Claimant’s evidence to be untruthful, but rather that a proper interpretation of that evidence did not support the assessment of the care expert. She added that the appeal amounted to an ‘impermissible attempt’ to overturn the Court’s decision.
In light of this case it is clear that the area of fundamental dishonesty remains a grey area. Whilst this case shows that in some instances an exaggeration of an element of a claim may not result in a ruling of fundamental dishonestly, if an element of a claim is purposely exaggerated a ruling of fundamental dishonesty may still be applied.
On Saturday 6th May the annual Spring 5K took place in Sefton Park. Our very own Kelsey Hunter, Legal Personal Assistant took part in the run with her mum. Kelsey had been training for the 5K for the past few months and thoroughly enjoyed the race, she was however, glad that it wasn’t too hilly! The race wasn’t all plain sailing when suddenly Kelsey had to dodge and manoeuvre past several dogs wondering along the race path with the dog walkers following behind. The dogs along with the runners got quite a fright when they were in the middle of a pack of runners!
Dogs and hills aside Kelsey completed the race in 36 minutes and 27 seconds. She will be doing the Scouse 5K later this year where she will be aiming to beat her personal best and finish the 5K in under 30 minutes.
Well Done Kelsey!
Driscoll Kingston are proud to be a part of Will Aid, a charity which works alongside solicitors to allow people to obtain a will costing them nothing to do so. Driscoll Kingston have been congratulated by Will Aid after they raised £1070.00! Each year thousands of people use the Will Aid Scheme. We hope other Solicitors start to participate in this scheme as it is a great way to raise money for the nine charities which Will Aid works alongside. Driscoll Kingston will be continuing to participate and hope to beat our recent achievement this year.
Driscoll Kingston’s recently appointed Trainee Solicitor, Jennifer Campbell, has recently signed up to the Merseyside Junior Lawyers Division (MJLD).
MJLD is an independent association linked to the National Junior Lawyers Division. MJLD strive to provide an educational and professional support network for young lawyers in Merseyside and is equipped to represent the views and opinions of its members on a national level. With the help of its sponsors the MJLD provide a wide range of services including networking opportunities through its social and sporting events, educational talks, seminars, work experience and charity fundraising.
For the year of 2017 the charity that the MJLD are fundraising for will be Crisis, which is a charity aiming to end homelessness. Jennifer will be attending the events provided by the MJLD and hopes to assist in their fundraising efforts.
Our very own PA Kelsey is currently in training to run the Spring 5K on the 6th May 2017 at Sefton Park in Liverpool.
Kelsey will be running this alongside her Partner, Dave and her Mum. The reason she has chosen this particular run is because she has never run this particular race before.
So far Kelseys training is off to a flying start, she is currently spending her lunch hours on the treadmill at the gym gaining her stamina to run the 5K easily. Kelsey aims to finish the run in 30 minutes and beat the time from her last 5 K last year which was 40 minutes.
Kelsey still has a good few months of training left and we are confident she will ace spring 5K. We are looking forward to cheering her on along the race and we wish her all the best in her training. We will be sure to post some pictures of Kelsey before and after the spring 5K and update on her time! Good luck Kelsey
Throughout November Driscoll Kingston Solicitors took part in the Will Aid scheme. This scheme meant that throughout November, Driscoll Kingston Solicitors offered to write Wills for their Client’s and rather than receiving their fee for drafting the Will, a donation would be made to Will Aid.
The money raised by Will Aid is divided between 9 charities which are Action Aid, Age UK, British Red Cross, Christian Aid, NSPCC, Save the Children, SCIAF, Sightsaves and Trocaire. Since 1988, Will Aid has raised over £16 million to help transform people’s lives in the UK and around the world.
Driscoll Kingston Solicitors are proud to note that throughout November we raised £1,050 for Will Aid and we would like to thank all of our Clients who took park in the scheme this year.
The facts of the matter are that the Claimant was employed as a cardiac physiologist by the Defendant and in the course of her employment she suffered a back injury when attempting to transfer a patient from a trolley to an investigation table in March 2007. Liability was admitted by the Defendant in April 2009 and Judgment in default was entered on 15 July 2010. The case was fixed for trial in April 2016 but this trial was vacated in a disputed application for the Defendant to have permission to rely on covertly recorded video surveillance. The Defendant applied for permission to serve a defence which pleaded that the claimant had knowingly exaggerated the consequences of her accident and included causation issues not previously seen in the pleadings. The Defendant’s application was granted.
The Claimant applied for permission to rely on the evidence of Mr Jeffrey A Simm, a video evidence analysis consultant, in the form of a witness statement or, in the alternative, permission to rely on his evidence in an expert capacity in the form of a report. In his opinion, the DVD evidence ‘cannot be taken at face value’ and there had been selective filming.
As the Claimant Solicitors had had a chance to review the surveillance and obtain an expert opinion on the same the Court allowed the surveillance evidence to be used. However, the Court was not necessarily happy that the Defendant waited until 9 days before the trail window before obtaining and disclosing this evidence. Due to the trial needing to be vacated, and both sides incurring significant additional costs, the Court ordered that the Defendant pay the costs of vacating the trial, the cost of the two Application hearings, and the Claimant’s additional expert costs of viewing the surveillance footage, on the indemnity basis.
This judgment is an important warning that the Courts will take a dim view of late attempts to rely on surveillance evidence, particularly if this is likely to prejudice trial dates. Notwithstanding that the Defendant’s Application was successful in this instance, the judgment shows that the Court was highly reluctant to allow the evidence, and was ready to impose punitive costs sanctions to reflect the disruption to the Court timetable.
In light of this judgement, it would seem imperative that Defendants ensure that all evidence they wish to rely on is disclosed at the relevant stage to save such cost consequences.
The general rule in common law when a genuine mistake has been made by a Solicitor is that the mistake can be rectified. This common law rule is designed to prevent the harsh consequences that could otherwise occur. A question that is often raised however, is whether or not this common law doctrine applies to the pre-action protocol for low –value road traffic accident claims; the answer to which seems to be no.
It has been made clear that the pre-action protocol is a self-contained scheme governed, somewhat harshly, by its own rules. An example of this can be seen in the caser of Draper v Newport. In this case the Claimant fee-earner accidently pressed ‘yes’ on the portal twice, instead of once, which meant that she had unintentionally accepted the Defendant’s offer without obtaining her Client’s instructions. The Claimant fee earner noticed the mistake immediately and emailed the Defendant handler with an explanation of the mistake within half an hour. The Defendant refused to accept the mistake and the matter appeared before the Court. The Court held that the common law mistake doctrine did not apply to a portal case. The reasons given for this was that the portal was introduced as a streamline online process which is faster and cheaper than cases which are not dealt with under the process and therefore a common law doctrine should not apply.
This point of law was considered further with the case of Allison v Bertiluyte, although the circumstances differ the argument remains the same. In this case the Claimant Solicitor accepted the Defendant’s counter offer meaning that payment was due in 14 days. On day 13 the Defendant contacted the Claimant to advise that the offer was made in error and therefore payment would not be made. Part 8 proceedings where issued by the Claimant and an order was made for the payment to be made. The Defendant subsequently made an application to set aside the judgement.
On hearing the Defendant’s application the Judge accepted that the offer made was in fact a mistake, however the issue was whether or not this mistake undermined the Claimant’s acceptance of the offer. The decision made was that the mistake did not undermine the acceptance. This was not only due to the decision of Draper v Newport but also due to the rule in contact that if the mistake doctrine is to apply then the Claimant would need to have known that the offer was a mistake, which they did not.
The cases set out above, although different in circumstances, highlight the clear message from the Court that when dealing with matters via the portal there is no room for mistake and extreme care must be taken when dealing with the same on a daily basis.