Wickes Building Supplies Limited v William Gerarde Blair  EWCA Civ 17
This decision follows the Court of Appeal ruling in regard adducing evidence late in Protocol claims and the correct procedure to be adopted at Stage 3. Following from that decision in favour of the Appellant/Defendant issue was taken in respect of the costs of that Appeal and the first Appeal to the Circuit Judge.
The issue was focussed entirely upon costs with the following questions asked of the Court:
- Do the rules governing fixed costs in CPR r45.17 to 19 apply to the costs of the appeal?
- If not, does CPR r.52.19 apply?
- If CPR r52.19 does apply, what order for costs should we make?
- Does the Qualified One-Way Costs Shifting regime in CPR Part 44 apply to the costs of the appeal so as to limit the extent to which any order may be enforced against the respondent?
The Court set out that costs of proceedings in the civil division of the Court of Appeal, the High Court and county court were in the general discretion of the court, subject to rules of court, pursuant to S.51 of the Senior Courts Act 1981. The rules governing Appeals are set out at CPR Part 52 with Rule 52.19(1) giving the appeal court a specific discretion to limit the recoverable costs of an appeal in any proceedings where costs recovery is normally limited at first instance. It followed that the Protocol fixed costs do not apply to the costs of an appeal, though the appellate court has discretion in such cases to limit the costs recoverable.
In the present case the Court was not persuaded to exercise discretion to limit the costs on the basis the first appeal (by Claimant/Respondent) was “wholly unmeritorious” and caused the incurring of unnecessary costs. The inequality in the parties’ financial circumstances did not justify any departure from that outcome, nor were wider principles of access to justice relevant.
Enforcement of the costs order was however subject to the QOCS regime. The word “proceedings” in CPR r44.13 was interpreted as including both the first instance proceedings and any subsequent appeal. It was considered that if a claimant’s access to justice was dependant on the availability of QOCS that access would be “significantly reduced” if they were exposed to the risk of costs of an appeal. Therefore any appeal which concerns the outcome of the claim for damages for personal injuries or the procedure by which such a claim is determined is part of the “proceedings”. That interpretation is to apply even where the Court is dealing with a second appeal, the appeal is brought by the Defendant to the original claim and the Court has declined to exercise discretion to limit costs under CPR 52.19.
The Court provides helpful guidance that the principle of costs awards in cases subject to Appeal remains at the discretion of the Court and even in fixed costs cases the Court may come to a different outcome where appropriate to reflect a fair outcome to both parties. Though the benefit of that decision to a successful Defendant in fixed costs cases, particularly low value claims, is greatly reduced by the effect of QOCS. The applicability of QOCS to Appeal cases in the circumstances outlined does raise an additional commercial consideration for any Defendant looking to bring or defend an Appeal. The question must be asked whether it is economically worth the fight if success will likely see a Defendant financially worse off by bearing their own substantial Appeal costs then had they simply not had the fight. Claimants will doubtless be alive to this commercial reality and use it as part of any compromise discussion when an Appeal is intimated.
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