Counterclaiming for personal injuries? QOCS protection: the Sequel

Counterclaiming for personal injuries? QOCS protection: the Sequel's Tags

Tags related to this article

Counterclaiming for personal injuries? QOCS protection: the Sequel

Published 20 noviembre 2018

In Ketchion v McEwan, HHJ Freedman decided that a Defendant in an RTA claim who counterclaims for personal injuries is entitled to QOCS protection in both the counterclaim and the main action, despite the Claimant's not pursuing personal injuries in the main action. Click here for more details. 

As we predicted, a different County Court Judge has reached a very different conclusion in the case of Waring v McDonnell, judgment in which was handed down on 6 November 2018.

The Claimant and Defendant both suffered injuries as they rode their pedal cycles into a head-on collision.  Both parties pursued claims for personal injuries and, at trial, the Claimant's claim succeeded and the Defendant's counterclaim was dismissed.  HHJ Venn was required to consider whether the Defendant could rely on the protection of qualified one-way costs shifting which HHJ Freedman had granted to the Defendant in Ketchion.  Were the claim and counterclaim one set of proceedings (in which case QOCS protection would apply) or two sets of proceedings (in which case it would not)?

Whilst HHJ Freedman had based his judgment on his interpretation of Cartwright v Venduct Engineering Ltd, HHJ Venn decided that a claim against six Defendants for injuries was a single claim against all of the Defendants, whereas a counterclaim for injuries is a separate claim from the Claimant's personal injury claim.

Noting the judgments in Wagenaar v Weekend Travel Limited and Plevin v Paragon Personal Finance Ltd, HHJ Venn concluded that the claim and counterclaim were two separate claims and that the Claimant enjoyed the benefit of QOCS protection in relation to the pursuit of his claim, and that the Defendant enjoyed the benefit of QOCS protection in relation to the pursuit of his counterclaim.  Neither one was protected by QOCS in his capacity as a Defendant, as the defending of the claim is not the making of a claim for personal injuries. 

In HHJ Venn's opinion, the outcome of Ketchion was inconsistent with the intention of the QOCS rules, encouraging unmeritorious counterclaims and removing the teeth of the Part 36 regime if no costs sanctions could apply.  In Waring, she decided that the Defendant did not have the benefit of QOCS protection in relation to the defence of the Claimant's claim.

We now have two conflicting judgments on the question of whether counterclaiming Defendants have the benefit of QOCS protection.  The uncertainty over which one will be followed by other judges may result in an appeal to a higher court in order for clarity to be provided.

Authors

David Williams

David Williams

Leeds

+44 (0)113 251 4844

Peter Allchorne

Peter Allchorne

Bristol

+44 (0) 117 918 2275

< Back to articles