PI Brief Update

Pre-commencement Funding Arrangement vs. Protection under QOCS, plus a cameo for proprietary estoppel - Nancy Kelehar, Temple Garden Chambers

20/06/24. Thomas v Southwick Car Centre Ltd [2024] EWHC 1315 (SCCO).

A personal injury claim arose out of a tripping incident on the Defendant’s premises in May 2012. At trial in May 2017, DJ Goddard dismissed the claim, finding that some of the evidence upon which the Claimant relied had been ‘tailored and shaped’ and the story had been ‘elaborated upon over the months and years’ following the accident.

A finding of fundamental dishonesty was not made. The Defendant had not asked the court to make such a finding as its understanding was that the QOCS regime did not apply to the proceedings.

This was on the basis that the Claimant had entered into pre-commencement funding arrangements (‘PCFA’) in the form of a CFA and an ATE policy prior to 1 April 2013. Per CPR 44.17, the QOCS regime does not apply where the Claimant has entered into such a PCFA.

Following the accident, the Claimant had instructed Wilkin Chapman LLP (‘WCL’) to pursue her claim for personal injury. WCL acted for the Claimant under the terms of a CFA dated 3 August 2012. This agreement comprised a signed front page, three pages of terms & conditions, and a cancellation notice.

In October 2012, WCL wrote a formal letter of claim to the Defendant which stated that the claim was supported by a CFA providing for a recoverable success fee, and that the Claimant had taken out a legal expenses policy. In addition, in 2015 when the claim was issued, the Notice of Funding stated that the claim was funded by a CFA and an ATE policy.

The Claimant terminated WCL’s retainer in December 2016 and instructed direct access counsel who represented her at trial. After the judgment was handed down, both Defendant and Claimant counsel confirmed to the court that the case was ‘not a QOCS case’.

DJ Goddard’s order dismissing the claim also ordered the Claimant to pay the Defendant’s costs to be determined by detailed assessment if not agreed. The Defendant subsequently took enforcement proceedings and initiated the detailed assessment.

Tangentially, WCL sought to recover their legal fees from the Claimant. The Claimant defended this on the basis that the CFA was unenforceable. These proceedings were ultimately discontinued by WCL.

In addition, in 2018, the insurer terminated the Claimant’s cover under the...

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