Kerry Underwood

QOCS, MULTIPLE DEFENDANTS AND SET-OFF

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In Bowman v (1) Norfran Aluminium Limited (2) RM Easedale & Co Limited (3) Norfran Limited, unreported

a Claimant discontinued against one Defendant, having discovered that it had never employed her.

The Claimant succeeded against other Defendants.

The successful Defendant argued that it was entitled to have the costs order in its favour set-off against the damages that the Claimant recovered from the other Defendants.

HHJ Freedman said that CPR 38.6 applied and therefore a costs order should be made against the discontinuing Claimant in favour of the successful Defendant in the usual way.

However, QOCS applied and the judge held that a successful Defendant was not entitled to a set-off of its costs against damages paid by other parties, and thus was unable to enforce the order.

CPR 44.14(1) allowed a set-off of costs against damages, as well as costs, but the concept of set-off involved a mutuality of liabilities where there were cross-claims between a paying party and a receiving party.

There could not be set-off in favour of a party which was due to receive money, but not pay it.

Had it been the intention of the Civil Procedure Rules that a successful Defendant could enforce its costs order against damages paid by another Defendant, then they would have said so.

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Written by kerryunderwood

December 14, 2017 at 9:08 am

Posted in Uncategorized

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