02 September, 2015
In this controversial decision, a regional costs judge has ordered that a claimant was entitled to the protection of QOCS even though she had signed an earlier pre- 1st April 2013 CFA for the same injury.
The claimant had entered into a CFA with her solicitors prior to the introduction of the QOCS rules on 1 April 2013. The solicitors then terminated the agreement in January 2013 and the claimant instructed new solicitors and entered into a second new CFA in August 2013.
Ms Casseldine's claim for personal injury failed, the defendant therefore sought determination whether the claimant should pay the defendant's costs of the failed proceedings owing to the earlier CFA, or whether she was protected by QOCS.
The Judge found that so far as the first CFA was concerned, it was the first solicitors who had terminated it and therefore they were not entitled to payment of any success fee or costs. The claimant had issued proceedings pursuant to the second CFA entered into with her current solicitors. No proceedings were ever issued in relation to the first CFA and therefore the Judge stated that in those circumstances it could not be right that the claimant should not be able to rely on the protection afforded by QOCS. It was duly order that the claimant was not be responsible for payment of the defendant's costs and could rely on QOCS.
This is an important decision on this issue and will undoubtedly affect many similar claims. For now, it is clear that even where a claimant has entered into a pre-1st April 2013 CFA they may still be able to benefit from the protection of QOCS, if the former CFA has been terminated. Defendants will undoubtedly be disappointed by the decision. The Judge distinguished the case of Landau v The Big Bus Company and another where the claimant had been denied the protection of QOCS, on the basis that there had been two sets of proceedings, whereas in the instant case there had only been one set of proceedings emanating from the second, post 1st April CFA.
We note with interest that permission to appeal has been granted and will report further as and when the appeal is heard.
For further information please contact Sarah Wilkinson.