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PI Practitioner, June 2019

16/06/19. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.

In a case where a defendant has brought an unsuccessful counterclaim including a claim for personal injury, he can obviously claim QOCS protection in respect of the costs payable to the claimant attributable to the personal injury counterclaim. However, does his QOCS protection cut wider than this, so as to cover the whole of the costs order made in the claimant's favour against him? The issue arises in dozens of cases each day, and there are conflicting lower court decisions as to correct approach.

The resolution of the issue turns upon the interpretation of CPR 44.13:

"(1) This Section applies to proceedings which include a claim for damages [for personal injuries].
(2) In this Section, 'claimant' means a person bringing a claim to which this Section applies or an estate on behalf of which such a claim is brought, and includes a person making a counterclaim or an additional claim.

Does the term "proceedings" in CPR 44.13(1) refer to the case as a whole including the counterclaim? If so, the defendant will benefit from QOCS protection covering the case as a whole. If not, and the word "proceedings" is essentially synonymous with "a claim", such that the claimant's claim and the defendant's...

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