QOCS Disapplied After Claimant Fails to Attend Trial


27 November, 2015

Brahilika v Allianz Insurance Plc CC (Romford) (District Judge Dodsworth) 30/07/2015

A claimant who brought a claim for personal injury failed to attend his one day fast track trial because he was on holiday. The judge struck out the claim, disapplied QOCS and awarded the defendant its costs.

Prior to the trial, claimant's counsel sought an adjournment in the interests of justice. The defendant opposed the adjournment and applied for QOCS to be disapplied, seeking an order for costs against the claimant pursuant to CPR r.44.15.

Under QOCS, the general position is that defendants are not entitled to enforce orders for costs against claimants if the claimant failed to recover any damages. However, in this instance the judge found that the claimant's failure to attend the trial obstructed the 'just disposal of the proceedings'. Under CPR r.44.15(1)(c)(i), he considered that the defendant ought to have the opportunity to test the claimant's evidence and to determine if there had been fundamental dishonesty. The RTA claim had been listed for trial because there was a dispute as to whether the accident had occurred at all. No effective trial could take place without the claimant's live evidence.

The claimant was therefore ordered to pay the defendant's costs, summarily assessed.

Forbes comment

The law surrounding QOCS is slowly evolving and this case is thought to be the first reported case on the CPR 44.15(c) exception. We ought to stress that this case does not mean that every time a claimant fails to attend a trial a similar award will be made, however, the exception is likely to be relevant in cases where defendants wish to put claimants to proof.

For further information please contact Sarah Wilkinson


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