QOCS, otherwise known as Qualified One-way Costs Shifting, leaves defendants out of pocket when defending claims, unless a defendant can satisfy one of the few exceptions in the Civil Procedure Rules to merit its disapplication. In particular, CPR 44.15 provides several exceptions where permission of the Court is not required to to enforce a costs order made against a claimant following strike out of the claim. A question often arises as to whether CPR 44.15 can apply when a claimant's claim is struck out for non-payment of the trial fee. This issue was recently explored in Bruce and Bruce-Daly v Thomas Cook Tour Operations, a case I acted in which came before DDJ Veysey at Portsmouth County Court.
The Claimants went on holiday to Fuerteventura, Spain, for 14 nights in January 2015. The holiday was a package holiday provided by the Defendant. Each Claimant alleged that they suffered gastroenteritis during the course of the holiday, which they considered was caused by inadequate hygiene practices at their hotel.
The Claimants subsequently brought proceedings for breach of contract against the Defendant for alleged food poisoning suffered during their package holiday, contrary to the Package Travel Regulations 1992.
In September 2018, the Claimants' solicitor made an application to come off the record. From that point onwards, the Claimants failed to comply with the order made upon allocation, notably failing to provide a standard disclosure list and an updated schedule of loss.
In December 2018, the Defendant applied to have the Claimants' claim struck out in accordance with CPR 3.4, for failure to comply with the Court's order upon allocation. At the hearing of the strike out application, it became apparent that the Court had served the application notice and accompanying documents on the Claimants' former solicitor. As such, the matter was adjourned. It was mentioned during the course of that hearing that the Claimants believed that when their solicitor came off the record, the claim would simply come to an end. The Claimants were later correctly served with the application notice and accompanying documents, as well as the notice of hearing.
Before the hearing of the adjourned application, the Claimants further failed to file witness statements. The claim was later struck out without a hearing prior to the Defendant's adjourned strike out application, as the Claimants had failed to pay the trial fee.
The matter solely remained listed in respect of costs and came before DDJ Veysey, who had struck out the matter.
CPR 44.15 states as follows:
Orders for costs made against the claimant may be enforced to the full extent of such orders without the permission of the court where the proceedings have been struck out on the grounds that -
(a) the claimant has disclosed no reasonable grounds for bringing the proceedings;
(b) the proceedings are an abuse of the court's process; or
(c) the conduct of -
(i) the claimant; or
(ii) a person acting on the claimant's behalf and with the claimant's knowledge of such conduct,
is likely to obstruct the just disposal of the proceedings.
The Defendant submitted that under CPR 44.15, the Defendant's costs should be enforced and QOCS disapplied. The Judge stated that he thought he had struck out the claim solely on the basis that the Claimants failed to pay the trial fee. However, the Order made by the Judge following strike out did not expressly state his reasons for doing so. Rather, it simply said that the claim had been struck out upon reading a letter from the Defendant. The Defendant therefore submitted that the conduct of the Claimants generally, including the non-payment of the trial fee, had obstructed the just disposal of proceedings and plausibly led to the striking out of the matter.
When looking at the word 'conduct', the Judge accepted that this could refer to a course of conduct, including non-payment of the trial fee. He considered that the Claimants' conduct generally in failing to comply with court orders had obstructed the just disposal of proceedings. That conduct, coupled with the failure to pay the trial fee, was sufficient for the Judge to consider that CPR 44.15 applied. Further, the allocation order specifically noted that if the Claimants failed to pay the trial fee, the Defendant could receive its costs.
The Judge went on to disapply QOCS and awarded the Defendant its full costs.
This decision, albeit a County Court decision, demonstrates that non-payment of the trial fee can, in some circumstances, led to a successful application to disapply QOCS. In this case, the conduct of the Claimants had generally been very poor. In addition, the Court Order made following strike out of the claim did not specify that the claim had solely been struck out for non-payment of the trial fee, paving the way for a successful application.