C had instructed solicitors to deal with a personal injury claim in March 2012 and had entered into a Conditional Fee Agreement on 02/03/12 supported by an ATE policy. Liability was disputed by D and the solicitors terminated the CFA on 30/01/13. This had the effect of also terminating the ATE cover pursuant to contractual provisions. C then instructed new solicitors and entered into a fresh CFA on 06/08/13. Proceedings were issued in December 2013 and the case came on for trial on 01/12/14 when the claim was dismissed with an Order that the issue of whether or not C was entitled to the protection of QOCS under CPR 41.13 to 44.17 was directed to be determined by the Regional Costs Judge. Mark Carlisle was instructed by C to deal with this discrete costs issue.
District Judge Phillips found that the only relevant decision (being that of Master Haworth, Senior Courts Costs Office, in Landau v The Big Bus Company (31 October 2014, unreported)) could be distinguished and found that –
- No proceedings were commenced under the first (pre Jackson) CFA
- The proceedings were conducted under the second (post Jackson) CFA
- The first CFA had been terminated by the first solicitors, thus no success fee or indeed any costs were payable under the first CFA
- Had C won at trial, the Court would not have been in a position to Order D to pay any additional liabilities
- The transitional provisions at CPR 44.17 and 48.2 must be read in context – CPR 48.2 is directed squarely at recoverability
- The purpose of the rules was to achieve a quid pro quo, so that post 1st April 2013 QOCS protection applied where D was not faced with any additional liability
C was awarded full costs protection along with costs of the application summarily assessed and to be paid by D.
Permission to appeal has been granted.