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07 June 2016

The Decision in Parker v Butler [2016] EWHC 1251

Background to the Case

Parker v Butler started life as a fairly unremarkable road traffic collision on the M18/M180 roundabout that occurred on 10 April 2013, and fell into that all too common category of cases “who changed lanes”; the Claimant averred that the Defendant came into his lane and into collision, whereas the Defendant averred that the Claimant came into his lane and into collision
 
The case came to trial and at first instance HHJ Pemberton found both the Claimant and the Defendant to be witnesses who were doing their best to tell the truth and believed the account that they were giving. She criticised the Claimant (or his solicitors) for the lack of any photographs or plans of the junction, and dismissed the claim as the Claimant failed to discharge the burden placed upon him.
 
The Claimant appealed on a number of grounds and for a number of reasons including grounds which could succinctly be put as:
 

  • Having considered both drivers as being persons of honesty, failed to actually analyse their evidence and come to a factual conclusion on the question in the case, ie. Who moved lanes;
  • Failing at all to consider the evidence of the Claimant’s wife, who was a passenger within the vehicle; and
  • Failed in suggesting that the Claimant, to discharge the burden placed upon him, should have provided photographs or diagrams of the junction, so as to allow her to come to a conclusion.

 
On appeal, Mr Justice Edis QC did find that the learned Judge was in error for the above reasons.
 
He then went onto consider whether he was in the position, as the Court of Appeal was in Dorothy Cooper V (1) Floor Cleaning Machines Ltd (2) Dean Crompton [2003] EWCA Civ 1649, to come to his own findings of the case, notwithstanding that he had not in fact heard the witnesses give their evidence, although he did, of course, have a full transcript of proceedings. He considered that he was in such a position and found that the accident was more likely caused by the Claimant changing lanes rather than the Defendant.
 
This, although the trial Judge had fallen into error, the appeal failed as the correct decision had been reached (ie. The dismissal of the claim) if not for the correct reasons.

The Costs Argument

Costs were then raised.
 
At first instance it was accepted by the Defendant that Qualified One Way Cost Shifting (QOCS) applied. Costs were assessed but the Judge made an order that they were not to be enforced. There was no dispute as to the same.
 
On appeal, however, the Claimant sought the protection of QOCS, and the Defendant argued that they should not have that protection. The Defendant argued that public policy supported them as to allow QOCS protection in such circumstances would be to cause Defendants to be exposed to numerous unmeritorious appeals and to greater expense in costs which would be unrecoverable.

The Claimant, on the other hand, argued that the balance of public interest lie in their favour. Were the position shifted, and the appeal was by the Defendant against a successful Claimant, how could it ever be right that that Claimant had to defend that appeal without the protection of QOCS?

As to the rules themselves, the point does not appear to have been specifically and expressly raised in the higher Courts previously. If any appeals have previously dealt with the same (and one must assume that in the three years post QOCS, some appeals must have reached the higher Courts) the issue of costs was either not contested or something of a footnote to the issue actually in dispute in the appeal.
 
The County Court had been inconsistent in respect of the same. I am informed, anecdotally, of Circuit Judges coming to contrary views on the applicability on costs on appeals.
 
The rule does not definitively provide the answer:
 
Qualified one-way costs shifting: scope and interpretation
44.13

(1) This Section applies to proceedings which include a claim for damages –
(a) for personal injuries;
(b) under the Fatal Accidents Act 19767; or
(c) which arises out of death or personal injury and survives for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 19348,
but does not apply to applications pursuant to section 33 of the Senior Courts Act 19819 or section 52 of the County Courts Act 198410 (applications for pre-action disclosure), or where rule 44.17 applies.
 
An appeal is not an exception in r.44.15-16.

On the face of it, therefore, without more, QOCS would apply.

The problem comes with the decision of Hawksford Trustees Jersey Limited v. Stella Global UK Limited and another (No 2) [2012] EWCA Civ 987 which suggested that trial and appeal could be considered separate proceedings, and the Defendant relied upon the same to that effect. In addition Arabella Wagenaar (Claimant) v Weekend Travel Ltd (T/A Ski Weekend) (Defendant) & Nawelle Serradj (Third Party) [2014] EWCA Civ 1105 confirmed that the word “proceedings” did not mean the entire umbrella of litigation.

However, in Landau v (1) Big Bus Co Ltd (2) Pawel Zeital (the case of Master Howarth referred to in the Judgment) the Court had to consider r44.17:
 
44.17
This Section does not apply to proceedings where the claimant has entered into a pre-commencement funding arrangement (as defined in rule 48.2).

and found that the trial and the appeal were the same proceedings, drawing an analogy between “proceedings” and “matter”:

"To my mind there was only ever one "matter", namely a personal injury claim arising from the accident which took place on 3 May 2009. There was only ever one claim for damages arising out of that accident to be determined either at first instance or appeal."

As to the rule, the Claimant and Defendant respectively argued as to the Landau and Hawksford approaches being applicable in the present case.

The Judgment

It was the reasoning in Landau that Mr Justice Edis QC followed in Parker in finding that the appeal was part of the proceedings and that they, therefore, attracted the protection of QOC:
 
17.  An appeal by a claimant against the dismissal of his claim for personal injuries is a means of pursuing that claim against the defendant or defendants who succeeded in defeating that claim at trial.  There is no difference between the parties or the relief sought as there is between the original claim and the Part 20 claim.  Most importantly, to my
mind there is no difference between the nature of the claimant at trial and the appellant on appeal.  He is the same person, and the QOCS regime exists for his benefit as the best way to protect his access to justice to pursue a personal injury claim.  To construe the word “proceedings” as excluding an appeal which was necessary if he were to succeed in establishing the claim which had earlier attracted costs protection would do nothing to serve the purpose of the QOCS regime.  The other construction, which holds that for the purposes of CPR Part 44.13 an appeal between the claimant and the defendant in a personal injury claim is part of the proceedings which include a claim for personal injuries is open to me, following Hawksford Trustees Jersey Limited, and should be preferred because it more justly achieves what is plainly the purpose of the regime as divined from the Rules.

18.  That construction derives particular force from the facts of this case.  The appeal concerned the way in which the judge had determined the claim for personal injuries.  It was inextricably linked with that claim.  Having found that her approach was flawed, I went on and determined the claim myself (following Cooper v. Floor Cleaning Machines Limited [2003] EWCA Civ 1649).  It would be very difficult to describe a hearing at which the claim was determined as not part of the proceedings which include that claim.  This reasoning will not apply so closely to other types of appeal, but it illustrates the point.  In my judgment for the purposes of the QOCS regime any appeal which concerns the outcome of the claim for damages for personal injuries or the procedure by which it is to be determined is part of the proceedings as defined in CPR 44.13.  Therefore an order for costs against the claimant in favour of a defendant will only be enforceable to the extent permitted by the QOCS regime.”
 

The story does not quite end there, as the Judge was directed by the Defendant to CPR 52.9A:
 
Orders to limit the recoverable costs of an appeal
52.9A
(1) In any proceedings in which costs recovery is normally limited or excluded at first instance, an appeal court may make an order that the recoverable costs of an appeal will be limited to the extent which the court specifies.
(2) In making such an order the court will have regard to –
        (a) the means of both parties;
        (b) all the circumstances of the case; and
        (c) the need to facilitate access to justice.
(3) If the appeal raises an issue of principle or practice upon which substantial sums may turn, it may not be appropriate to make an order under paragraph (1).
(4) An application for such an order must be made as soon as practicable and will be determined without a hearing unless the court orders otherwise.
 

The learned Judge quite readily accepted that a costs regime where QOCS might apply would be one to which “recovery is normally limited or excluded”, regardless of whether fixed costs by that time applied. Did this section mean that, if the Claimant wished to rely on QOCS, he had to make an application under CPR 52.9A(4)?
 
Mr Justice Edis QC deemed not and found that:
 
“this covers cases where there are no special rules governing the costs in the appeal court, but there are in the proceedings below.  This does not apply to cases where, on a proper construction of the rules, the same regime applies to the proceedings at first instance and on appeal”.
 
In Akhtar v. Boland [2014] EWCA Civ 943 the Court held that
 
“CPR 52.9A confers power on the Court to limit costs of an appeal, but it does not confer power to award costs where there is a provision of the CPR precluding a costs order.”
 
Mr Justice Edis QC, having found that the “proceedings” cover both the trial and the appeal thus considered the same irrelevant. CPR 52.9A thus does not affect the situation at all. 

Will this lead to a Claimant “free for all”?

Even in the couple of days since this Judgment, I have seen concern about this Judgment giving Claimants an effective “free go” at an appeal, and indeed, this concern was raised by the Defendant in the appeal, with obvious concern about the volume of cases that might follow.
 
I am far from convinced that we will see the large volume of appeals that are feared for a number of reasons:
 
1. Unless there are reasonable grounds for appealing, it would frankly be a waste of the Claimant’s solicitor’s time and money (if instructing Counsel) on entirely unmeritorious claims;

2. The Claimant will have to obtain permission, and the permission stage should sieve out the unmeritorious actions (although the approach in many Courts of having the permission stage and appeal heard together could mitigate this somewhat, and cause Defendant’s to incur expense on entirely unmeritorious appeals);

3. This was one of the arguments against QOCS in respect of claims generally, the general wisdom being that, absent penalty of adverse costs order, Claimant solicitors would issue everything. It does not, however, appear to be the case that this occurred or opened the floorgates to unmeritorious claims.
 
In addition it is also fair to say that, if QOCS applies to appeals, the control mechanisms on QOCS must also apply (ie. 44.15-44.16). As such, if the Claimant was found to be fundamentally dishonest at trial, it seems that he would not have the protection of QOCS on any appeal.
 
I had, in the preparation of this article, considered whether CPR 44.15 could come to the aid of Defendants. If the “proceedings” are to be construed in the sense that they include the appeal, it is arguably the case that the Defendant could seek to strike out those proceedings for the reasons in CPR 44.15, most likely 44.15(a), the lack of reasonable grounds for the appeal (it being unlikely that (b) or (c) could ever apply).
 
However, such a submission would relate to the submission that an appellant had no ground to challenge the Judge’s findings within their appeal. Would such a finding mean that there were no real grounds for bringing the “proceedings”? In the view of the author, probably not (although one can perhaps envisage circumstances where it might be, at most, arguable). So long as the matter was not liable to be struck out at first instance, it seems that QOCS protection would extend to any appeal. This would ultimately be a matter for further argument but, on the assumption that the Claimant passes the threshold of getting permission prior to any appeal hearing, the same would be really rather moot.
 
Defendants might therefore be concerned about the practice of some Courts to list the oral hearing for permission to be followed (of necessary) by the actual hearing of the appeal when faced with wholly unmeritorious appeals. They would be put to an unrecoverable expense. In the opinion of the author, in a post-QOCS world, the Courts would be well advised to separate the oral permission hearing and the hearing of any appeal. Where the court does list them together, if I were advising a Defendant, I would suggest writing to the Court to split the hearing dates, pointing out the irrecoverable costs that the Defendant would otherwise be exposed to if they are required to attend Court on unmeritorious appeals. 

A final point:

The learned Judge identified, at para 20, that some Courts include the findings of enforceability into the order, and some do not. There is considerable weight in including such an order (or recital) following a hearing and costs assessment, and one might consider it sensible that the approach of the High Court in this case is followed by the lower Courts on a more consistent basis.
 
 
Craig Fisher

Counsel for the Claimant / Appellant in Parker

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