Strike-out a “better route” to disapplying QOCS

A claimant who had their noise-induced hearing loss claim struck out has lost the protection of qualified one-way costs shifting (QOCS) after the defendant successfully argued that the exceptions laid out in rule 44.15 applied.

Sarah Stuchfield, the associate at DWF who acted for the defendant in the case, said that because the strike-out application did not have to involve considerations of fundamental dishonesty, “the insurer was in an improved position as there was no need to seek the court’s permission to set aside QOCS protection to be able to enforce the costs order”.

The letter of claim in the case was dated 17 March 2015. Proceedings were issued on 22 August 2015 but not served until 17 December 2015. No medical evidence was served with the particulars of claim, but the claimant’s solicitors served a screening audiogram which had been conducted on 7 October 2015.

This led to a strike-out application in January 2016 in light of the failure to any serve medical evidence in support of the claim, pursuant to paragraph 4.3 of PD 16.

The defendant argued that the audiogram did not constitute a medical report as it failed to comply with rule 35.10 and the requirements set out in PD 35. It was further submitted that the audiogram did not satisfy the criteria for such tests and, in any case, did not indicate hearing loss beyond what would be expected of someone of the claimant’s age.

The strike-out application was successful and DWF argued that the claimant should automatically lose QOCS protection under rule 44.15, on the basis that serving the proceedings without the requisite medical report meant that the claimant disclosed no reasonable grounds for bringing the proceedings; and/or the proceedings constituted an abuse of process; and/or the conduct of the claimant’s legal representative was likely to obstruct the just disposal of the proceedings.

Before the hearing of this application took place, the claimant’s solicitors purported to serve a notice of discontinuance and, over the phone, persuaded the court staff to vacate the hearing. DWF applied to set aside the notice of discontinuance and sought an order for the claimant to pay the costs of the entire claim.

Ms Stuchfield reported: “The court deemed that the notice of discontinuance had not been effectively served. It had been sent by email, even though DWF LLP does not accept service by email as stated on its letterhead. Consequently, the judge did not need to hear the application to set aside the notice of discontinuance.

“He went on to strike out the claimant’s claim as requested in the defendant’s original application, on the basis that the proceedings disclosed no reasonable grounds for bringing the claim, and made a costs order in favour of the defendant. The striking out of the claim on the basis of these grounds meant that the claimant automatically lost QOCS protection, without the judge having to decide whether or not that was appropriate as would have been required if he had made a finding of fundamental dishonesty.”

In cases where fundamental dishonesty is established, the court’s permission to enforce is required and Ms Stuchfield said that “while it is worthwhile insurers raising fundamental dishonesty in this type of claim, there is a more direct route to the same outcome if the claim can be struck out so that rule 44.15 applies instead”.

 

This post was posted in ACL e-Bulletin

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Costs News
Published date
14 Oct 2016

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