This blog reviews the forthcoming changes to the QOCS regime which will reverse the effect of Ho v Adelekun [2021] UKSC 43 and other recent cases.
The Civil Procedure (Amendment) Rules 2023/105 (for brevity, ‘the Amendment Rules’) are about to amend the CPR’s QOCS provisions in an apparent attempt to negate the effects of various recent authorities, in particular Ho v Adelekun [2021] UKSC 43 and more recently University Hospitals of Derby & Burton NHS v Harrison (APIL intervening) [2022] EWCA Civ 1660. For a recent discussion of the importance of Harrison, see Shilpa Shah’s excellent recent blog here.
The relevant amendment will be effected by rule 24 of the Amendment Rules, amending rule 44.14 of the CPR.
The Amendment Rules come into force on 6 April 2023. It should be noted that, very importantly, under rule 1(3), the amendments made by rule 24 apply only to claims where proceedings are issued on or after that date.
As will be well known, CPR 44.14 presently reads as follows:
44.14
(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.
(2) Orders for costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.
(3) An order for costs which is enforced only to the extent permitted by paragraph (1) shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record.
Once the amendment comes into force, the rule will read as follows with the new wording in bold:
44.14
(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for, or agreements to pay or settle a claim for, damages, costs and interest made in favour of the claimant.
(2) For the purposes of this Section, orders for costs includes orders for costs deemed to have been made (either against the claimant or in favour of the claimant) as set out in rule 44.9 [author’s note: rule 44.9 sets out various deemed costs orders including where a part 36 offer is accepted by a claimant, and on discontinuance]
(3) Orders for costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.
(4) Where enforcement is permitted against any order for costs made in favour of the claimant, rule 44.12 applies [author’s note: rule 44.12, amongst other things, gives the court the power to set off costs orders against each other]
(5) An order for costs which is enforced only to the extent permitted by paragraph (1) shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record.
What is potentially interesting is that, at [51]-[52] of the judgment in Harrison, Coulson LJ noted the forthcoming rule change and said this:
[A]t the meeting of the CPRC on 7 October 2022, a fuller amendment was agreed in principle, although it has yet to be formally ratified. That read as follows:
‘(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for or agreements to pay damages, costs and interest made in favour of the claimant.’
It would not be appropriate to say anything more about this proposed change for the purposes of this appeal, save to note two things. First, it does not expressly address Part 36 …
(Coulson LJ’s second point is not mentioned here because once the Amendment Rules are in force it will be redundant: that point was, in essence, that he considered the mere existence of the proposed amendment to support his construction of the original rule.)
It will be noted that the rule change enacted is not precisely the same as that under consideration when Coulson LJ said that. But it remains the case that there is no express reference to Part 36. Clearly, whether or not that matters remains to be seen.
