Challis v Bradpiece – court confirms that QOCS regime applies to the costs of detailed assessment proceedings

Posted: 19/08/2024

A recent clinical negligence case, in which Penningtons Manches Cooper acted for the claimant, has provided some clarity and reassurance for personal injury claimants and their legal advisers on the extent to which they are protected from potential liability for defendants' costs. The question for the court in Challis v Bradpiece [2024] EWHC 1124 (SCCO) was whether qualified one way costs shifting (QOCS) applies to the costs of detailed assessment proceedings.

The claim was settled by the acceptance of a Calderbank offer, expressed in a Tomlin order. The claimant’s costs were assessed at less than the defendant’s Part 36 offer and the defendant therefore contested the claimant’s proposed order to pay the defendant’s costs of the detailed assessment proceedings but not to be enforced without further order from the court.  

Proceedings were issued on 29 January 2022 so the claim did not fall under the scope of the CPR rule change implemented by rule 24 of the Civil Procedure (Amendment) Rules 2023. The defendant therefore argued that QOCS did not apply to the detailed assessment process, but only to proceedings which include a claim for damages and/or personal injuries in line with CPR 44.13 (1) (A). The defendant also relied on CPR 47.20 (7), which states: ‘For the purposes of rule 36.17, detailed assessment proceedings are to be regarded as an independent claim.’

The claimant submitted that the detailed assessment process is a new phase of the personal injury proceedings, relying on Serbian Orthodox Church v Kesar & Co [2021] EWHC 1205 (QB)). It was also argued that CPR 47.20 (7) only exists so Part 36 offers can be made within detailed assessment proceedings. Costs Judge Leonard’s ruling in Best v Luton & Dunstable Hospital NHS Foundation Trust [2021] EWHC B2 (Costs) was referred to, where he stated: ‘Where, as here, the authority for assessment is an order made in an underlying claim, the detailed assessment proceedings remain part of that action. The receiving party’s claim for costs is not an independent claim: it is made under the order for costs made on the conclusion of the underlying claim.’

The cases of Parker v Butler [2016] EWHC 1251 (QB) and Wickes Building Supplies Ltd v Blair (No 2: Costs) [2020] EWCA Civ 17 were also relied on, as in both cases the court accepted that QOCS protection continued to apply in relation to appeals. Similarly, in Achille v Lawn Tennis Association Services Ltd [2022] EWCA Civ 1407, Lord Justice Males referred to the decision in Wagenaar v Weekend Travel Ltd [2014] EWCA Civ 1105, [2015] 1 WLR 1968 and stated: ‘This is a clear decision that the term ‘proceedings’ in CPR 44.13 refers to all of the claims made by a claimant against a single defendant, when one such claim is for personal injury’ (paragraph 26).

In a lengthy and detailed judgment, Deputy Costs Judge Roy appreciated the defendant’s argument that detailed assessment proceedings are distinct proceedings and have a distinct jurisdictional basis. He further noted that, as a matter of ordinary language, detailed assessment is not a claim for (or including) damages for personal injury. Ultimately though, the judge found that the term ‘proceedings’ in CPR 44.13 (1) (a) should be interpreted broadly and purposively to give effect to the purpose of QOCS, referring to the authorities supporting that QOCS applies to the appeals process. The judge stated that if QOCS did not apply to detailed assessment proceedings, a claimant could be left with a net liability for the defendant’s costs, which would be completely contrary to the purpose of QOCS and go wholly against the grain of the Supreme Court decision in Ho v Adelekun [2021] UKSC 43. 

Rebecca Lidster, a costs draftsperson at Penningtons Manches Cooper, handled the costs claim in this significant case, while partner Philippa Luscombe led the team advising the claimant on the clinical negligence aspects of her case.

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