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Nadia Whittaker helps MPS to secure a finding that the QOCS protection does not apply to pre-action applications, resulting in Cleversons Solicitors acting for the Claimants agreeing to meet all costs orders

Nadia Whittaker instructed by Joseph McCaughley of Medical Protection Society on behalf of a dental practice in Hoddeston, Hertfordshire and its owner Dr Shah, the dentist at the practice, successfully defended in August 2020 an application for a Group Litigation Order made by Cleversons Solicitors on behalf of patients who have been exposed to a risk of contracting blood borne viruses as a result of an admitted breach of duty by a hygienist, Ms Parikh, who worked at the practice. Cleversons Solicitors  were instructed by 26 potential Claimants and were arguing that a GLO was required so that the litigation could be advertised to other patients in this position as some 563 have been notified by Dr Shah and Public Health England about their exposure.

Her Honour Judge Melissa Clarke sitting as Designated Civil Judge for Thames Valley, Bedfordshire & Hertfordshire dismissed the application for a Group Litigation Order, describing it as “both inadequate and premature”.  The Judge reserved her judgment on the issue of whether the Claimant were protected by QOCS given that the application for a GLO was issued pre-action.

HHJ Clarke handed down the judgment on the issue on 13 November 2020 (which can be found here.

Having undertaken a review of the Court of Appeal’s decisions in Wagenaar v Weekend Travel Limited t/a Ski Weekend [2014] EWCA Civ 1105 and Wickes Building Supplies Limited v William Gerarde Blair (No 2) (Costs) [2020] EWCA Civ 17 and the decision of Edis J in Parker v Butler [2016] EWHC 1251 (QB), the Judge considered there was no previous authority directly on the point, although in construing the meaning of the relevant wording in CPR rule 44.13, the Court was required to take into account the purposes of the QOCS regime.

The Judge concluded that the definition of “proceedings” in CPR rule 44.13 had to be construed in accordance with the general provision in CPR rule 7.2 and that this did not conflict with the aim and purpose of the QOCS regime. CPR rule 7.2 by its definition of “proceedings” excludes all pre-issue applications and the Claimants’ pre-action application for a GLO was therefore also excluded from the protection of the QOCS regime. The costs orders made against the Claimants are enforceable.

An application was also made by the Defendants in August 2020 for all costs arising from the failed GLO and the determination of the issue of QOCS to be paid by Cleversons pursuant to CPR rule 44.11 and/or rule 46.8. Cleversons had been given an opportunity to file evidence to resist this application and failed to do so. At the adjourned hearing they gave an undertaking that they will meet the costs orders made against the Claimants pursuant to the dismissal of the GLO application, the determination of the issue about QOCS and the application regarding the costs to be paid by Cleversons. Cleversons also had to confirm to the Court that they will not seek to deduct such costs from any future compensation which may be awarded to the Claimants or any of them in relation to the claims that are subject to the GLO application.



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