Qualified one-way costs shifting in detailed assessment proceedings

We acted in the case of Challis v Bradpiece [2024] EWHC 1124 (SCCO) (13 May 2024) on behalf of the claimant, in relation to a clinical negligence claim that was settled by way of acceptance of a Calderbank offer, expressed in a Tomlin Order.

As the parties were unable to agree on the issue of costs, they were assessed by the court. The result was that the assessed costs were less than the defendant’s Part 36 offer. However, it was argued that qualified one-way costs shifting (QOCS) applied to the costs of assessment, and an order was sought for the claimant to pay the costs of the detailed assessment proceedings, but not to be enforced without further order from the court.

We argued that QOCS applied to detailed assessment proceedings, and in a lengthy judgment, Deputy Costs Judge Roy found that the term ‘proceedings’ in the Civil Procedure Rules 44.13 (1) (a) should be interpreted broadly and purposively to give effect to the purpose of QOCS, referring to the authorities supporting that QOCS applies to the appeals process.

The judge stated that if QOCS did not apply to detailed assessment proceedings, a claimant could be left with a net liability for the defendant’s costs, which would be completely contrary to the purpose of QOCS, and go wholly against the grain of the Supreme Court decision in Ho v Adelekun [2021] UKSC 43.