Mixed Messages – Analysis of the judgment in Achille v Lawn Tennis Association Services Ltd. [2022] EWCA Civ 1407

Last week the Court of Appeal handed down judgment in the case of Achille v Lawn Tennis Association Services Ltd [2022] EWCA Civ 1407. Frederick Lyon and Ryan Ross acted for the successful appellant. Here they analyse the potential significance of the judgment for claimants and defendants.

 

Factual Background

The claimant – who was unrepresented until the Court of Appeal granted permission to appeal – has a long running dispute against various persons and corporate bodies relating to events occurring in 2013 and 2014. These events led to his expulsion from a tennis club in Birmingham. The claimant issued a claim against the defendant for negligence, racial victimisation under s.27 of the Equality Act 2010 and breach of the Protection of Harassment Act 1997. The claimant claimed that he had suffered both a recognised psychiatric injury in addition to injury to feelings and other losses. His claim was therefore a mixed claim.

On 13^th May 2019 his claim for personal injury was struck out on the basis that he had failed to plead and establish with medical evidence that any action by the defendant had caused him personal injury. It was deemed that his pleading disclosed no reasonable grounds for bringing the PI claim. The district judge made a costs order against him and found that, as the PI claim had been struck out for one of the grounds specified in CPR 44.15, the order could be immediately enforced without further permission of the Court.

The matter was appealed to a Circuit Judge, who agreed with the District Judge’s decision. Permission to appeal as a second appeal was granted by the Coulson LJ who confirmed that the issue before the court raised an important point of principle or practice.

 

The Rules

CPR 44.15, reads:

“Exceptions to qualified one-way costs shifting where permission not required

 44.15 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 [our emphasis] 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 action 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 Issue Before the Court of Appeal

The only issue before the court was whether strike out of the PI elements of a mixed claim was sufficient to engage CPR 44.15 and automatically disapply QOCS. This turned on the definition of the word ‘proceedings’ within that provision.

 

The Decision of the Court of Appeal

The Court (Males, Edis and Baker LJJs) agreed with the submissions put forward on behalf of the appellant and decided that the use of the word ‘proceedings’ within the QOCS provisions, while open to some interpretation, must be consistent within the QOCS regime. For this to be the case ‘proceedings’ had to mean all claims brought by a claimant against a defendant or defendants (Wagenaar v. Weekend Travel Ltd [2014] EWA Civ. 1105 and CPR 44.13 considered).

Furthermore, such an interpretation was not inconsistent with the purpose of the QOCS regime and should not be seen as an encouragement to bring ‘frivolous claims’. This was because in the case of a mixed claim courts had wide discretionary powers as to costs pursuant to CPR 44.16(2)(b).

 

Analysis

There are several interesting features which can be drawn from the judgment:

• Proceedings across the QOCS regime must be read consistently as meaning all claims brought by a claimant against a defendant not merely the personal injury aspect;
• As such, a claim where the personal injury claim was originally brought but now no longer exists continues to have QOCS protection until the conclusion of the case. While counter-intuitive, this is consistent with the fact that some strike outs under CPR 3.4 do not remove QOCS protection (i.e. procedural strike outs), the court also made specific reference to ‘reverse summary judgments’ as not engaging 44.15;
• At the conclusion of the case a court may exercise discretion to remove QOCS protection from the claimant in a mixed claim pursuant to CPR 44.16(2)(b), this is notwithstanding whether those adverse costs related purely to the personal injury aspect of the claim. The court may make “whatever order will meet the justice of the situation” (para 34).

There is therefore good news and bad news for both claimants and defendants within this judgment.

On the one hand it is no longer as attractive a prospect for a defendant to seek to strike out part of a claimant’s claim in the hope that the immediately enforceable costs order will be sufficient to prevent the claimant from proceeding to trial on the surviving claims.

Defendants who are seeking an enforceable costs order are well advised to ensure that their application falls squarely within the clearly defined terms of CPR 44.15 and that this is clearly explained within the application.

On the other hand, this judgment should not be seen as an encouragement to claimants to tack on frivolous or hopeless personal injury claims onto their otherwise valid claims in the hope of receiving QOCS protection. The court made clear that in such a case the discretion of the court under CPR 44.16(2)(b) could be used at the conclusion of the matter to enforce the entirety of the costs of the strike out against the claimant, notwithstanding a situation where the claimant recovered no damages. It was also advanced in argument that in claims where the defendant believes the claim to have been deliberately ‘tacked on’ it was open to make applications under 44.16 for a finding of fundamental dishonesty or to seek to have the entire matter struck out as an abuse of process.

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