Tabbitt (claimant/appellant) v Clark (defendant/respondent)

Описание: Wednesday 28 June 2023

Before Lord Justice Lewison
Lord Justice Peter Jackson
Lady Justice Nicola Davies

This is an appeal by the Claimant against the order made by HHJ Walden-Smith dated 9 December 22 dismissing C’s application for an order under CPR 44.14 that D is not permitted to enforce the costs order in para 2 of the order.

The C’s claim was for damages for personal injuries sustained in a road traffic accident. The claim settled. On 3 January 22, the C accepted out of time the D’s Part 36 offer. The parties agreed that the usual costs order should apply, ie that C should have his costs up to 21 days after service of D’s Part 36 offer and D should have his costs thereafter.

The parties disagreed on whether the court should direct the costs order in D’s favour should not be enforced including by way of set off. D sought no mention of enforceability as it was thought that the QOCS rules might be amended on 2023 to permit enforcement on retrospective basis, and at that point D could seek to enforce.

C sought inclusion of an order that costs order in D’s favour was not to be enforced.

The judge declined to make an order precluding enforceability for two reasons:

-enforceability was not possible as at 1 December 2022 owing to wording of CPR 44.14(2) which provided that enforcement of costs takes place after assessment when there is a quantified sum;

-the law pertinent to QOCS may have changed by the time enforcement came to be considered.