Defendants in a case discontinued on the first day of trial have urged the court to penalise the claimant in costs.

Paul Higgins told the Court of Appeal today that the claimant in McDonald v Excalibur & Keswick Groundworks Ltd had run a ‘threadbare case to the doors of the court’ and should be denied qualified one-way costs shifting protection.

The court heard that the claimant, Michael McDonald, brought a personal injury claim after an accident at work. Liability was denied by the defendants and at the outset of the trial, they brought up a tension between what was asserted in the pleading and the claimant's witness statement. After a brief discussion, McDonald’s lawyers applied to discontinue.

His Honour Judge Freedman last November allowed an appeal from the claimant that QOCS should not be disapplied.

Before the Court of Appeal, Higgins said the claimant had used up court resources and got in the way of other litigants. ‘Running a case for 500 days and on the day of trial discontinuing is conduct that is likely to obstruct the just disposal of proceedings,’ he added.

Higgins said the judge had erred in law by assessing that the claimant had not rendered a fair trial impossible and so should not retain their ‘QOCS shield’.

But the defendants were probed by the appeal judges as to why they had waited so long to bring up discrepancies that might hinder the case, with Lady Justice Nicola Davies suggesting ‘you sat there waiting for the trial knowing you have fodder for cross-examination’.

Lord Justice Peter Jackson told Higgins: ‘You are saying that a defendant should be able to let sleeping dogs lie for as long as they want and in a sense then pounce.

‘The whole point of QOCS is to provide a systematic protection to a certain class of litigant which is not replicated in other areas of the law. It is not predicated by the statement that this is for meritorious claimant or admirable claimants or even average claimants. It is available to all claimants.

‘Many claimants are highly unmeritorious, don’t run their cases well and drive people up the wall, but the law doesn’t say that is a reason for depriving them of QOCS.’

Andrew Hogan, for the claimant, said the practical consequence of QOCS in the majority of cases where a defendant succeeds was that they had to stand their own costs.

He added: ‘QOCS is there for the losers: the good, the bad and the indifferent claimants who can therefore litigate without fear of losing their house. There is nothing unjust in that, because it is a quid pro quo [for the other LASPO reforms]. It is not contentious that the compensating bodies will have saved possibly hundreds of millions of pounds across the board since 2013.’

Judgment was reserved.

 

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