Escaping the QOWCS Web

One of the effects of QOWCS has been to encourage claimants to bring personal injury claims with only very modest prospects of success because they have the security of QOWCS protection. Without the need to obtain and retain after the event insurance, often the merits of a case are never properly considered or monitored as the case continues. The other consequence of QOWCS is that it disincentivises defendants to fight such cases because in the event of a successful defence, any costs order against a claimant will likely be unenforceable.

A recent case highlights the danger of claimants being lulled into a false sense of security by QOWCS.

In Leung v (1) Eftekhari (2) Eftekhari [2015] at Central London County Court, DJ Price struck out a personal injury multi track claim following an application made by the Defendants at a CMC.  The Claimant was ordered to pay the Defendants’ costs.  As a result, the exception to QOWCS in CPR 44.15 applied and the Claimant lost her costs protection and the costs order was enforceable.  She was ordered to make an interim payment of £5,000 on account of costs.

The facts were that the Claimant was working for the Defendants for three months in 2014 as a maternity nurse.  During this time she lived at their house.  She alleged that she was bitten by insects while living there.  The bites became infected and she spent some time in hospital receiving treatment.  The Claimant brought a claim against the Defendants in negligence for personal injury as well as claims for wrongful dismissal, holiday pay, sick pay and misleading references.

In answer to the Defendants’ CPR 18 questions the Claimant stated that she believed she had been bitten by a spider. There was no assertion that this was an unusual spider or an exotic pet that had escaped. Her hospital records also referred to a spider bite. 

The Defendants applied for strike out of all or parts of the Claimant’s claim and summary judgment.  On the day of the hearing the Claimant conceded that her claims for wrongful dismissal, holiday pay, sick pay and misleading reference should be struck out.  However it remained in issue whether her claim for personal injury should be struck out as well.

Having heard submissions from both parties, District Judge Price considered that it would not be fair and reasonable to impose upon a householder a duty to keep spiders out of their home.  Such a duty it would be entirely unworkable. The basic premise of negligence and breach of duty did not have real prospects of success, which meant more than being merely arguable. Consequently it was not in accordance with the overriding objective to allow the case to continue forwards. The Judge struck out the personal injury claim on the basis that there were no reasonable grounds for bringing the claim (CPR 3.4(2)(a)).  The Judge also gave summary judgment for the Defendants on the grounds that the Claimant did not have real prospects of success (CPR 24.2).

In addition to being a warning to claimants, this case is a reminder that defendants should, in appropriate cases, make early applications to strike out/for summary judgment to have a chance of enforcing a costs order against a claimant.

Leung v (1) Eftekhari (2) Eftekhari [2015] 20.10.2015 Central London County Court, District Judge Price.  Jasmine Murphy instructed by Nick Rogers, Solicitor, KLS Law for the Defendants.