Proceedings for the purposes of the costs rules begin when the court issues a claim form and so qualified one-way costs shifting (QOCS) does not apply to pre-issue applications, a circuit judge has ruled.
Her Honour Judge Melissa Clarke at Oxford County Court said access to justice would not be impeded by adopting the general definition of when proceedings start.
Waterfield and Ors v Dentality Ltd and Ors concerns a claim about a dental hygienist at a practice in Hertfordshire who had not decontaminated and sterilised dental equipment (specifically scaler tips) as required between each use.
The dentist terminated her employment and wrote to 563 patients who had been treated by the hygienist about the health risks. London law firm Cleversons is acting for 26 patients. HHJ Clarke refused an application for a group litigation order (GLO) on the basis that it was inadequate and also premature.
The defendants sought their costs of the application. The claimants accepted a costs order should be made against them, but said QOCS applied and so the order should not be enforceable without the permission of the court.
The defendants said there were no proceedings afoot – no claim form has been issued – and so QOCS did not apply.
The question before the court was whether the word ‘proceedings’ in CPR 44.13 included claims which have not yet been issued. The judge found no reason why that it should have a different meaning to the general definition contained in rule 7.2, which says “proceedings are started when the court issues a claim form at the request of the claimant”.
HHJ Clarke said she was “not convinced” by the claimants’ argument that not having the protection of QOCS would undermine its purpose of ensuring access to justice – they still had the option of making a post-issue GLO application, which would benefit from costs protection.
It was not “at all” like the position in cases like Parker v Butler in 2016 and Wickes Building Suppliers v Blair earlier this year, “where the access to justice facilitated by the QOCS protection that the claimants enjoyed at first instance would be undermined if that protection was not maintained on appeal”.
The judge concluded: “I can see no specific rule within part II of CPR 44 which conflicts with the general rule in rule 7.2. In my judgment, construing the definition of ‘proceedings’ in rule 44.13 to give it the meaning in the general rule 7.2 does not conflict with the aim and purpose of the QOCS regime.”
She ruled that QOCS did not apply to the pre-issue GLO application.
William Poole (instructed by Cleversons) for the claimants, Nadia Whittaker (instructed by Medical Protection Society) for the first and second defendants, and Romilly Cummerson (instructed by Hempsons) for the third and four defendants.