Does Qualified One-Way Costs Shifting apply to detailed assessment?

The Association of Costs Lawyers’ London Annual Costs Conference was held last Friday.

One of the breakout sessions was “An Audience with Senior Costs Judge Rowley”. As entertainment goes, it was better than “An Audience with Jeremy Beadle” but not as good as “An Audience with Victoria Wood”. Each to their own.

One of the questions that was raised was whether Qualified One-Way Costs Shifting (QOCS) applies to detailed assessment proceedings.

It is some time since I have given any thought to this issue, but it is worth revisiting.

The starting point, obviously, is to look at the wording of the rule. CPR 44.13 provides (emphasis added):

“(1) This Section applies to proceedings which include a claim for damages –

(a) for personal injuries;

(b) under the Fatal Accidents Act 1976; 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 1934,

but does not apply to applications pursuant to section 33 of the Senior Courts Act 1981 or section 52 of the County Courts Act 1984 (applications for pre-action disclosure), or where rule 44.17 applies.”

The answer to the question therefore depends on whether detailed assessment proceedings are to be treated as a continuation of the original proceedings (where that claim included a claim for personal injuries), in which case QOCS applies, or whether detailed assessment proceedings are to be treated as separate proceedings, in which case QOCS will not apply. There are perfectly respectable arguments on both sides (as set out in a previous post).

However, consider the situation of two otherwise identical personal injury claims where the only difference is:

• Case A settles pre-issue.
• Case B settles one day after proceedings are issued.

If detailed assessment proceedings are no more than a continuation of the original proceedings, it is easy to see why QOCS would apply to case B.

However, if the parties are unable to agree costs in relation to case A, it will be necessary to issue Part 8 costs-only proceedings. Such proceedings clearly do not include any claim for damages (personal injury or otherwise). They are simply proceedings to obtain an order for costs. Any subsequent Bill of Costs will also not include any claim for damages (personal injury or otherwise). It will be a claim for costs only. It is difficult to envisage any argument to the contrary. As such, how can QOCS apply to case A where there are no proceedings including a claim for personal injury damages?

Is it therefore really the case that the claimant in case B has full QOCS protection in detailed assessment proceedings but the claimant in case A has none?

Of course, sometimes the only way to properly interpret a rule is such that it does result in an anomaly. It is then for the rules committee to look at amending the rule to remove the anomaly. However, basic principles of interpretation require a rule to be read in such a way as to try to avoid internal inconsistencies or absurd results. Any such problems disappear if the detailed assessment proceedings are treated as being separate from any underlying proceedings. QOCS would then apply to neither case A nor case B.

As ever, when asked a question outside the courtroom as to what the law is, SCJ Rowley kept his cards close to his chest.