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Since the inception of the latest comprehensive reforms to the CPR and the loss of recoverable ATE protection, unsuccessful claimants in applicable cases have been able to have the benefit of protection of Qualified One-way Costs Shifting (QOCS).
The operation of QOCS is set our within Part II, CPR 44, and the effect of QOCS is set out therein to provide that any unsuccessful claimant who may have a costs order made against them will only be able to have that order enforced against them to the extent of any damages recovered; thus whilst a claimant may have costs awarded against them and those costs may even have been quantified, if they have recovered no damages, the extent to which those costs can be enforced will be nil.
CPR 44.15 & 44.16, however, provide for exceptions to the general rule that QOCS will be effective in relevant cases, such that a claimant may not be able to rely on that protection in certain circumstances. Thus it was in the matter of Mrs Mandy Wall (personal representative of the estate of Stephen Wall, deceased) v British Canoe Union (Claim No A38YP644, County Court at Birmingham, 8 May 2015).
The unfortunate and tragic case involved a claim by the claimant on behalf of her late husband’s estate under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976, following a canoeing expedition during the course of which the deceased, accompanied by his daughter, was negotiating a weir on the River Teme, Burrington, when he became trapped in a ‘stop wave’ at the bottom of the weir and drowned. Mr Wall had been an experienced canoeist, and had consulted a publication by the Defendants entitled “English White Water – The BCU Guidebook” which, inter alia, provided course notes for stretches of rivers and artificial white water within England, grading courses between 1 and 6 as to difficulty.
Mrs Wall brought a claim following her husband’s death against the defendants, on the basis that the deceased had relied on the advice within the 2003 edition of the Guidebook, a copy of which had been found in the deceased’s car, bookmarked at the page relating to the weir, and as such sought compensation in negligence from the defendants.
The claim was fully defended by the BCU on the bases that the claimant could not show that the information within the Guidebook was untrue, inaccurate or misleading, rather that the information was “reasonably correct”, but most importantly that the Guidebook could not be a substitute for inspection, personal risk assessment or judgement.
The Defendant sought to have the claim struck out or, in the alternative, have judgement entered on their behalf, with costs to be paid by the claimant, arguing that the alleged duty of care owed by the defendant to the deceased “…does not exist in law…” and there was “…no reasonably arguable claim on causation…”.
That Application came before HHJ Lopez on 8 May 2015, whereupon he ruled that there could be no “relationship of proximity” between the defendant and the deceased and thus the claim was struck out, with costs.
In striking out the claim, HHJ Lopez found that
“If the duty of care as argued by the claimant were found to exist, it would mean that every publisher of every guidebook in the world on whatever topic or subject matter would assume an unlimited legal responsibility for the action and omissions of anyone who read their guidebook at any time after the publication”
“That responsibility would be unlimited – not only in terms of the indeterminate class of those who may read the same but also in terms of time.”
and further found that, were the claim to succeed, and “inevitable consequence” of that success would be that no author would wish to be exposed to such potentially unlimited liability when writing on topics involving risky ventures which may result in physical injury or any other form of loss.
Turning to the costs, and whilst acknowledging that claims under the Fatal Accidents Act could be the subject of QOCS protection (CPR 44.13(1)(b) & (c)), he found that the where the claim had been struck out, including on the grounds that the claimant had been unable to show any reasonable grounds for bringing the proceedings, the adverse costs order “…may be enforced to the full extent of such orders…” (CPR 44.15(1)).
Thus, it can be seen that, whilst QOCS protection has so far proven a useful substitute for the former ATE regime, risks still arise that such protection may be lost, not only where claims are spuriously brought, but also where there is a genuine belief in a claim but which does not ultimately succeed for lack of any reasonable causal link between claimant and defendant.