QOCS and Pre Action Applications

Waterfield v Dentality (t/a Dentality @Hoddeston) [2020] 11 WLUK 223 (13 November 2020)

QOCS does not apply to pre action, i.e. “pre issue” applications, so says HHJ Clarke in the County Court decision in the Waterfield case. THe case concerned GLO applications but it is likely to have wider impact in relation to Pre Action Disclosure applications per r.31.16.

It is not a binding authority but the persuasive value is likely to amount to the same thing in the County Court, apart from its reasoning, given the seniority of the judge and being pro-defendant/insurer (who are more likely to appeal points of law that are pro-claimant and have a wider impact on practice).

“35. … I find that “proceedings” for the purposes of CPR 44.13 start when the court issues a claim form on the request of a claimant, and so the QOCS rules do not apply to pre-issue applications, including the pre-issue GLO application in this case.” [HHJ CLarke’s conclusion]

The judge substantially relied on r7.2 to define the scope of the “proceedings” to which QOCS applied per r.4413:

Qualified one-way costs shifting: scope and interpretation
44.13
(1) This Section applies to proceedings which include a claim for damages –
(a) for personal injuries;

How to start proceedings
7.2
(1) Proceedings are started when the court issues a claim form at thttps://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07#7.2he request of the claimant.

The specific rule relevant to Pre Action Disclosure application reads:

Disclosure before proceedings start
31.16
(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started.

As r31.16(1) reads, it fortifies HHJ Clarke’s decision; Pre Action Disclosure applications are clearly “before proceedings” which appears to be clearly sequentially before any “proceedings” which is a pre-requisite so far as r44.13 is cocerned.

Whilst I find HHJ Clarke’s reasoning compelling on the rules, standing back, it sits uncomfortably. In practice, it will mean, a wide array of pre action applications are taken off the toolbox of personal injury litigation; pre action applications each have their own purposes and making them practically unavailable is to take a brick out of the wall without replacing the overall balance of play.

The decision stands in contrast to the treatment of QOCS and Appeals (Wickes Building Supplies Limited v William Gerarde Blair [2020] EWCA Civ 17). Those handling low value personal injury claims under Section IIIA r45 will have the comfort of fixed costs applying (Sharp v Leeds City Council [2017] EWCA Civ 33).

Claimant 0 Defendant Insurer 1