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Court of Appeal finds QOCS applies to Defendants Added to Claim after 1 April 2013

Corstorphine (An Infant) v Liverpool City Council (2018)[2018] EWCA Civ 270

The Court of Appeal has provided further guidance on the application of QOCS. The court was asked to consider whether QOCS should apply to defendants added to proceedings after 1 April 2013 where the existing claim was subject to a CFA and ATE insurance policy.

The Facts

The claimant brought a claim against Liverpool City Council after allegedly sustaining a serious injury whilst playing on a tyre swing in a playground.

• In August 2012, he entered into a CFA and an ATE insurance policy to cover his PI claim against the local authority, including cover against any order for him to pay the local authority's costs.
• The appellant issued his claim against the local authority in November 2012.
• On 1 April 2013, the QOCS regime came into effect.
• In October 2013, the local authority issued a Part 20 claim against two other companies. Those Part 20 defendants were joined to the primary claim as second and third defendants.
• The primary and additional claims were tried together.

At trial, the judge dismissed the primary claim and the additional claim and ordered the claimant to pay the respondent's costs of the primary claim, as well as those of the second and third defendants. This was on the basis that there was a pre-commencement funding arrangement (the CFA and ATE cover) which meant that QOCs did not apply.

The Court of Appeal Ruling

After considering the transitional provisions, it found that the relevant "matter" in the present case was the primary claim against the defendant. The pre-commencement funding arrangement was entered into for this claim only, there was no CFA or ATE policy which applied to the claims against the additional parties. The Court of Appeal concluded that the QOCS regime applied to the claims made against the second and third defendants and set aside the decision.

Forbes comments

This is an important decision which serves to further clarify the position on QOCS. Claimants will receive QOCS protection where parties have subsequently been added to proceedings after 1 April 2013. Defendants should review cases where this maybe the case and consider the resulting costs implications for such matters.

For more information contact Sarah Wilkinson in our Insurance department via email or phone on 01254 662831. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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