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QOCS protection lost after finding of fundamental dishonesty at trial

Creech v Severn Valley Railway & Ors
Telford County Court
25 March 2015

Gabriel Fay has recently succeeded in obtaining an order disapplying the rules on Qualified One Way Costs Shifting due to a finding of fundamental dishonesty at trial. Here he explains the background to the case and how it differs from previous fundamental dishonesty cases as there was no need to plead fundamental dishonesty or make a separate application to obtain the finding on the issue.

Background

In cases where Qualified One Way Cost Shifting applies, a successful defendant is unable to enforce a costs order against a claimant unless one of the exceptions found in CPR r.44.15 or r.44.16 applies.  Rule 44.15 sets out the circumstances where the court’s permission is not required to enforce a costs order against the claimant and r.44.16 those where permission is required. The circumstances where permission is not required include where the claim has been struck out because there were no reasonable grounds for bringing proceedings; or where the proceedings are an abuse of process.  Normally these issues will have been dealt with pre-trial by way of an application.  However, there is still scope to seek the court’s permission to disapply QOCS under r.44.16 and to argue at the successful conclusion of the trial that the entirety of the costs order against the claimant should be enforceable if it can be shown, on the balance of probabilities that the claim is fundamentally dishonest.

Facts

In the case of Creech we acted for Severn Valley Railway, the second of three defendants. The claimant security guard claimed to have suffered a fractured shoulder after tripping on a pile of matting left on the concourse of the railway station. Severn Valley Railway had contracted with the third defendant to provide an ice rink for the station concourse for the use of visitors during the February half term holidays.  The claimant alleged that the matting remained on the concourse after the dismantling of the ice rink. 

The claimant’s version of events was that he was patrolling the station not long after midnight on the morning of 6 March 2011 when he tripped on the matting.   The ice rink had been constructed on or around 11 February 2011 and it was the claimant’s case that it had been taken away some time before 6 March 2011.   The defendants’ case was that the ice rink was not dismantled until approximately 10:00 a.m. on 6 March 2011 i.e. some time after the claimant said the accident occurred, and therefore was fully intact at the material time.   According to the claimant the accident happened in the centre of the concourse, although this would have been impossible had the 40ft x 40ft ice rink been fully assembled, the ice rink being high sided and taking up the majority of the concourse. 

It was common ground between the parties that should the court accept that the ice rink was intact at the time the claimant had his accident then the claimant’s claim necessarily failed.  

Findings

The matter went before District Judge Rodgers at Telford County Court on 25 March 2015. After hearing evidence from the claimant and witnesses for the defendant, the judge found as a matter of fact that the ice rink was fully intact at the alleged time of the accident and accordingly the claimant’s claim failed.

When considering costs, counsel for the defendant argued that on the basis of the finding of fact Qualified One Way Cost Shifting should be disapplied as the claim was necessarily fundamentally dishonest. There were no grounds for mistake; either the ice rink was present, or it was not. Given that the court had found that it was fully assembled at the time of the accident then the claimant’s claim was necessarily fundamentally dishonest.  District Judge Rodgers agreed, awarding Severn Valley Railway costs of over £11,500, enforceable against the claimant.  

Comment

This case differs from the two previous QOCS fundamental dishonesty decisions of Gosling v Screwfix (2014) and the 2014 Admiral whiplash case in Southend County Court. In those cases separate applications were made to disapply QOCS. Indeed, in the Admiral case the court asked for an application to be made before it would hear submissions on the issue.

The Creech case demonstrates that there is no requirement to specifically plead fundamental dishonesty within the defence, nor is there a requirement to make a separate application. In QOCS cases where there are distinctly varying versions of events, and it is unlikely that both parties can be correct, thought should be had to putting the claimant’s representatives on notice that fundamental dishonesty will be argued.  Moreover, at the conclusion of a successfully defended case consideration should be given as to whether there has been a finding of fact which gives rise to an arguable case of fundamental dishonesty and counsel should be instructed to make representations at that stage

Contact

For further information please contact Gabriel Fay Chartered Legal Executive on 020 7645 4540

Further reading

“Fundamental dishonesty” – what it might mean

LITIGATION FUTURES QOCS disapplied in rare ‘fundamental dishonesty’ ruling

POST ONLINE NEWS Judge dismisses first full case for fundamental dishonesty- 31 Mar 2015 (subscription may be required)

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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