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Since the Jackson reforms in 2013, personal injury claimants who lose their case are not liable for the defendant's costs (QOCS – qualified one way costs shifting).
But, 70-year-old lorry driver Michael Howe, who was left partially paralysed following a road traffic accident in France (with an untraced driver) more than 10 years ago, had his claim for damages struck out after his original lawyers missed various limitation periods to bring his claim. Mr Howe was left facing a large and unexpected bill for the MIB's legal costs.
At first instance, Mr Justice Stewart found that Mr Howe was not entitled to the QOCS costs protection on the basis that the claim against the MIB was not a claim for damages for personal injury, because the MIB had not injured the claimant nor done him any other wrong. Mr Howe argued that the judge had adopted a narrow approach to the rule. The MIB stood in the shoes of the unidentified driver and is liable to pay damages for personal injury which would otherwise have been claimed by the driver, if identified.
Multiple Regulations exist which allow an injured party, such as a motorist or holidaymaker, a right of compensation against a body, such as an insurer or a tour operator, rather than the actual wrongdoer. A large number of these cases are brought each year, but following the judge's original refusal to apply QOCS to Mr Howe's case, many unsuccessful claimants currently face large and unexpected legal bills.
Lawyers appealing on behalf of Mr Howe, Benjamin Williams QC of 4 New Square, partner Jill Greenfield and senior associate Dushal Mehta of Fieldfisher, argued that Mr Howe deserved the same protection of QOCS despite his claim being brought against the MIB as a compensatory body and the MIB not having injured him.
Today, however, Lord Justice Lewison handed down judgment in the Court of Appeal in favour of Mr Howe and ruled that he is not liable for the defendant's costs, even though he lost his case.
The judgment ensures that the wording contained within the rule for QOCS to apply i.e to claims for damages for personal injury should be interpreted broadly to encompass any claim where compensation is sought by an injured claimant.
Claims under the Package Holiday Regulations and direct claims against motor insurers (as well as claims against the MIB) will now benefit from QOCS protection. We understand that there are many cases in Courts around the country which are stayed pending the outcome of Mr Howe's appeal as to the correct interpretation of a claim for personal injury to trigger QOCS protection.
This decision ensures that there is a level playing field when it comes to actions brought for personal injury and the costs protection afforded to claimants bringing those claims. The Jackson reforms always intended to introduce changes to allow people bringing personal injury claims the required protection against adverse costs.
Following the successful appeal, Dushal Mehta said that the Jackson Report had specifically looked to protect individual people by giving them access to the courts without the fear of racking up the costs of insurers or other large economic entities opposing their claim.
"After all this time, it is a huge relief to Mr Howe that he has been protected by the courts for a terrible injury that was in no way his fault. This decision will also give comfort to many other claimants bringing personal injury claims against compensatory bodies or insurers"
The claim for compensation for Mr Howe's injuries is ongoing.