Case Alert - [2017] EWCA Civ 932

Court of Appeal holds that claimant is entitled to benefit of QOCS against the Motor Insurers' Bureau

The Qualified One-Way Costs Shifting regime ("QOCS") results in personal injury claimants being protected from paying the other side's costs if they lose their claim. Accordingly, claimants receive this benefit if they claim against insured drivers. However, at first instance in this case, it was held that the Motor Insurers' Bureau (MIB) could recover its costs against an unsuccessful personal injury claimant. The basis for that decision is that CPR r44.13 provides that QOCS applies "to proceedings which include a claim for damages…for personal injuries" and it was held that a claim against the MIB was not one for damages as there was no "wrong" committed by the MIB. That decision has now been overturned by the Court of Appeal, thus giving personal injury claimants the same protection against the MIB as they have against insured drivers.

The Court of Appeal reached this decision on the basis that the ECJ principle of equivalence would have been breached had claimants against the MIB been treated less favourably than claimants against insured drivers. Furthermore, the application of common law taxonomy to claims created by EU law may be misleading. The relevant Directive refers to "compensation…for personal injuries" and so "damages" in CPR r44.13 should be interpreted as including compensation under the relevant motor vehicles regulation under which the claim against the MIB had been brought.