The issue in Anne Morgan (on behalf of herself and of the estate of Mr Christopher John Morgan) v Dr Chongtham Singh related to the provisions and application of CPR 44.13-17 (qualified one-way costs shifting (QOCS)).
A medical negligence claim was brought by the claimant which centred around the alleged negligent treatment of a Baker’s cyst. Mr Morgan instructed Irwin Mitchell and entered into a conditional fee agreement (CFA) which provided for a success fee. Sadly, Mr Morgan died on 29 December 2014. His wife decided to pursue the claim on behalf of the estate and for herself, taking out a post-Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) CFA.
The matter was defended throughout and proceeded to trial on 13 February 2017. Judgment was reserved and handed down on 1 March 2017. The claim was dismissed with costs for the defendant, subject to assessment. However, at this time, the claimant made clear its intention to pursue an argument that Mrs Morgan had QOCS protection.
The parties agreed to have the point determined as a preliminary issue in the detailed assessment.
The claimant’s position on this was a relatively simple one. Mr Morgan and Mrs Morgan were not the same person, nor were they the same party. Mr Morgan had the benefit of a pre-April 2013 CFA with a recoverable success fee and a recoverable pre-April 2013 after the event (ATE) insurance premium. As such, it was accepted that Mr Morgan did not have QOCS protection. However, Mrs Morgan did not have the benefit of either a pre-April 2013 CFA or ATE policy. Had Mrs Morgan been successful in her claim, she would never have been entitled to a success fee or ATE policy from the date that her late husband passed away and during which time she was the claimant. As a result, there was no bar nor exception to QOCS in respect of the period post death.
The defendant submitted that for the claimant’s argument to be successful, the claimant had to show that the claim brought by Mr Morgan and the claim brought by Mrs Morgan were two separate sets of proceedings for the purposes of CPR 44.13(1) and 44.17. This was based on the notion that QOCS applies to the entirety of a set of proceedings or it does not apply at all.
Batchelor DJ, sitting in the Sheffield County Court, determined that Mrs Morgan did have QOCS protection. Her reasoning was that Mrs Morgan was not the same claimant as Mr Morgan and did not have the benefit of a pre-commencement CFA; as a result, CPR 44.13 applied and Mrs Morgan had QOCS protection. In the alternative, Batchelor DJ found that if she was wrong on that construction and there was a need to consider both CPR 44.17 and CPR 48.2, then she would also find in favour of the claimant in that Mrs Morgan did not have a pre-commencement CFA in respect of a matter that was the subject of the proceedings in which a costs order had been made against her.
Evaluating the QOCS rules, Batchelor DJ stated:
“QOCS is a form of personal protection, protecting a particular claimant/person/party from the effects of an adverse costs order made against them. It is a personal protection and is lost if that person has entered into a pre-commencement funding arrangement (PCFA).
“Although the proceedings themselves must be within the scope of the proceedings set out in CPR 44.13, the protection afforded by QOCS does not apply to “the proceedings” or “the claim”, but to “the enforcement of orders for costs made against a claimant” within those proceedings (CPR 44.14).”
Further to this, in addressing the defendant’s primary submission, Batchelor DJ concluded:
“To determine the enforceability of the order against Mrs Morgan in her capacity as executrix of Mr Morgan’s estate the court must consider whether Mrs Morgan came within the [CPR] 44.17 transitional provision exception to take her outside of QOCS protection and to determine that the court must consider whether Mrs Morgan had a pre-commencement funding arrangement (PCFA) as defined in [CPR] 48.2. Plainly in my view she did not, therefore the [CPR] 44.17 exception does not apply.
“I do not consider there to be any inconsistency with the CPR to find Mr Morgan was the claimant in the proceedings up to his death and thereafter Mrs Morgan was the claimant in her capacity as executrix of his estate in the same proceedings. It was the status and legal entity of the claimant which altered not the proceedings themselves. ”Proceedings” can have different meanings in the context of different situations. As such I do not accept the defendant’s submission that for Mrs Morgan’s argument to succeed I must construe there to be two sets of proceedings.”
Albeit a first instance decision, this is a judgment of some importance and a first on the point specifically. There have been decisions with similar circumstances, such as Catalano v Espley-Tyas Development Group Ltd where a claimant has moved from a pre-LASPO CFA to a post-LASPO CFA, but in that case it was a tactical decision in an attempt to gain QOCS protection. Clearly, this was not the situation in the Morgan case.
Batchelor DJ has given a clear and concise interpretation of the QOCS rules and found that to deny all executors of estates or dependants who find themselves contemplating a claim following the death of a relative where that relative has instructed solicitors on a pre-commencement funding arrangement cannot be left with the “worst of both worlds”.
The matter now continues with the defendant’s claim for costs ending on the date of Mr Morgan’s death. The defendant has been allowed permission to appeal, although permission to leapfrog to the Court of Appeal was denied.
The defendant has now lodged its grounds of appeal.