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Imminent tenant Adam Taylor successfully relies on exception to the QOCS regime

Brahilika v Allianz Insurance Plc

The claimant in a fast-track personal injury case failed to attend at trial. The week before the trial, he had told his solicitors that he had booked a holiday which would overlap with the trial. Other than this, the claimant could not be contacted.

At trial, counsel for the claimant applied for an adjournment, but DJ Dodsworth refused the application and struck out the claim. Under the new QOCS regime, the defendant in a personal injury claim would not ordinarily be entitled to enforce any costs order made in its favour against the claimant, where the claimant failed to recover any damages. Counsel for the defendant therefore submitted that the exception under CPR rule 44.15(1)(c)(i) applied, so as to allow the defendant to recover its costs. Rule 44.15(1)(c)(i) applies where the proceedings have been struck out on the ground that the conduct of the claimant is likely to obstruct the just disposal of the proceedings.

DJ Dodsworth held that the differences between CPR rules 44.15 and 44.16 (fundamental dishonesty) were important. Rule 44.16 was not relevant in the present case, as it would be wrong to make a finding of fundamental dishonesty against the claimant where his evidence had not been tested at trial. It was appropriate to apply a purposive, common sense approach to the meaning of rule 44.15(1)(c)(i). A failure to attend at trial was “conduct likely to obstruct the just disposal of the proceedings”. “Just disposal” meant disposing of proceedings in a way that was fair to all parties. This included giving the defendant an opportunity to test the claimant’s evidence and to evaluate whether a 44.16 fundamental dishonesty exception could apply. In the present case, the defendant had been deprived of that opportunity by the claimant’s non-attendance. The claimant was ordered to pay the defendant’s costs, summarily assessed.

DJ Dodsworth highlighted that there was no authority on the issue because the QOCS regime was so new. The judgment therefore provides helpful guidance for defendants seeking to recover their costs in personal injury proceedings.

Adam Taylor appeared on behalf of the defendant, instructed by BLM Law.

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