A false but necessary distinction?

Whilst only a County Court decision, the judgment of Her Honour Judge Venn in Waring v. McDonnell (2018) will be of interest to many. The Claimant and Defendant were both cyclists involved in a head on crash – the Claimant sought damages for personal injuries against the Defendant and the Defendant defended the claim and counterclaimed for their own personal injuries.


The Claimant succeeded upon their claim and successfully defended the counterclaim. When it came to costs, the Defendant argued that the QOCS regime should protect them in relation to both their costs of defending the claim and bringing the counterclaim. The Claimant opposed this interpretation of the rules, arguing that QOCS protection should only provide protection in respect of the Defendant’s costs of pursing their own personal injury claim.


Her Honour Judge Venn, before ruling for the Claimant, considered a number of cases, including some first instance decisions where differing approaches had been taken; she observed that:


“The underlying purpose of the QOCS regime is, as set out above, to protect those who suffer injuries from the risk of adverse costs orders obtained by insured, self-insured or well-funded defendants. The purpose is not to protect those who are liable to pay damages to an injured party from the risk of adverse costs orders made against them in their capacity as defendant or paying party.”


She also expressed concern that, if the Defendant’s argument were to be accepted, Defendants would be able to protect themselves by pleading a counter claim for personal injuries.

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