PI Brief Update

Lifting the QOCS cap under r.44.16(2) and whether it is just to do so - Nancy Kelehar, Temple Garden Chambers

18/11/23. Amjad v UK Insurance Limited [2023] EWHC 2832 (KB). Date of Judgment: 10/11/2023. Mr Justice Richie allowed an appeal of a costs decision relating to the exceptions to the QOCS protection from adverse costs orders against claimants in ‘mixed claims’ (i.e. where there is a personal injury (PI) element and a non-PI element).

The trial judge found that the Claimant was debarred from relying upon impecuniosity on the basis of non-compliance with their disclosure obligations and therefore the Defendant had no liability for the hire charges at credit hire rates. Ultimately, the Claimant was awarded general damages of £2,500, repair costs of £5,231, hire charges of £1,549 and loss of profit of £750.

As a result, the Claimant had failed to beat the Defendant’s Part 36 offer. The Claimant was ordered to pay the Defendant’s costs from the date of that offer and the Defendant was granted permission – pursuant to CPR r.44.16(2) – to enforce the costs up to a maximum of £15,000, which was approximately £5,000 over the applicable QOCS cap.

Decision on Appeal

This costs decision was the subject of this appeal on the basis that [22]:

1. The Claimant was covered by the QOCS cap for his proceedings;
2. None of the automatic qualifications to the QOCS cap applied;
3. The judge was wrong to rule that the discretionary qualification in r.44.16(2)(b) applied to the proceedings; and
4. In relation to the discretionary qualification in r.44.16(2)(a), which did apply, the judge exercised the discretion wrongly in law by failing to take into account relevant factors.

At paragraphs 38 to 65, the judgment helpfully sets out the...

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