QOC’s Protection Is Still Available For Second Tier Appeals

In the case of Wickes v Blair (No2) Costs [2020] EWCA Civ 17, the Claimant had already undertaken an unsuccessful appeal and had further appealed to the Court of Appeal.

It was agreed that the Claimant should pay the Defendants costs of the appeal but it was not agreed that the Claimant should have QOCS protection.

In the costs decision at the Court of Appeal, Lord Justice Bakar held that QOCS still applied at appeal level where it applied to the first instance proceedings.  Lord Justice Baker considered the word proceedings as per CPR 44.13 to include both first instance and appeal hearings.

Under Section 51 of the Senior Courts Act 1981, the costs proceedings in a civil action at the Court of Appeal, High court and county court shall be in the ‘general discretion of the court, subject to the rules of court’.

In considering the circumstances surrounding the appeal, Lord Justice Baker was not persuaded that the court should exercise its discretion as to costs under CPR 52.19 to make an order limiting recoverable costs of the appeal in any proceedings of the first instance which were normally limited or excluded. Instead, LJ Baker ordered that the respondent pay the appellant’s costs of the appeal to the circuit judge and of the further appeal to this court, to be assessed if not agreed.

It was found however, that enforcement of the costs order was subject to QOCS. LJ Baker referred to the matter of Parker v Butler [2016 EWHC 1251(QB) and the comments of Edis J in that ‘to construe the word proceedings as excluding an appeal would do nothing to serve the purpose of the QOCS regime’

LJ Baker went on to say ‘The purpose of the QOCS regime is to facilitate access to justice for those of limited means. As Edis J observed at paragraph 3 of his judgment in Parker v Butler, if a claimant’s access to justice is dependent on the availability of the QOCS regime, that access will be significantly reduced if he is exposed to a risk as to the costs of any unsuccessful appeal which he may bring or any successful appeal a defendant may bring against him’

In conclusion, LJ Baker said that the ‘interpretation the QOCS applies even where the court Is dealing with a second appeal, the appeal is brought by the Defendant of the original claim and where the court has declined to exercise its discretionary powers under CPR 52.19. It follows that the costs order I would propose making is not enforceable against the respondent’

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