QOCS and Counterclaims
There have been two recent conflicting decisions regarding the recoverability of costs where a claimant has been faced with a counterclaim.
In Ketchion v McEwan, HHJ Freedman held that the losing defendant had QOCS protection against all of the claimant’s claim for costs, as a result of the provisions of CPR 44.13. HHJ Freedman found that the reference to proceedings within 44.13 relates to the proceedings as a whole and included both the claim and counterclaim, so that an unsuccessful counterclaiming defendant had the benefit of QOCS for the entire claim against them, including in respect of the costs of dealing with their failed counterclaim.
Similar issues were considered by HHJ Ven in Waring v McDonell  EW Misc B11 (CC) where both the claimant and the defendant had claims for personal injury. The claimant succeeded at trial and the counterclaim was dismissed. The Defendant sought to rely on the decision in Ketchion and HHJ Venn considered the wording and meaning of CPR 44.13 but held that the wording should be construed to include the claim and counterclaim separately, in line with CPR Part 20 which confirms that an additional claim (in this case, the counterclaim) shall be treated as if it were a claim for the purposes of the CPR.
HHJ Venn considered the decision of Whipple J in Commissioner of Police for the Metropolis v Brown and she concluded that: “Personal injury claims are claims for damages in respect of personal injuries (see the definition at CPR 2.3)… ”.
HHJ Venn commented; “It is obvious that the defence of a personal injury claim is not itself a personal injury claim; my analysis is consistent with the judgment of Whipple J”.
HHJ Venn concluded that the defendant in this case was not an unsuccessful claimant in the claimant’s claim for damages for personal injury (he was not a claimant at all in the claimant’s claim for damages for personal injury); he was an unsuccessful defendant (and an unsuccessful claimant in his counterclaim for damages for personal injury). He only has the protection of the QOCS regime in respect of his claim for damages for personal injury and does not benefit from it in respect of the claimant’s claim for damages for personal injury.
It is clear that a claim and counterclaim are to be treated separately and a successful defendant should be able to recover and enforce an order for costs of a successful counterclaim.
This also follows the findings in Jeffreys v Commissioner of Police for the Metropolis. Morris J held that where parts of a claim were for personal injury, but parts were not, the QOCS protection would not apply to the latter parts.
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