Kerry Underwood


with 4 comments


Swift v Carpenter [2020] EWCA Civ 165

the Court of Appeal considered the issue of the scope of Protective Costs Orders and the exercise of the court’s discretion and the need for speed in making an application, and the scope of the new CPR 52.19.

Here, the claimant sought a Protective Costs Order in relation to her appeal concerning the method of assessment of accommodation costs following a serious personal injury.

It was common ground that the claimant enjoyed Qualified One-Way Costs Shifting protection on the appeal, as in the proceedings at first instance.

The effect of QOCS is that no order for costs made against the claimant may be enforced without the permission of the court to the extent that the costs payable exceed the amount of damages and interest awarded.

The claimant argued that QOCS did not give her adequate protection and for all intents and purposes was meaningless as it still allowed her damages to be wiped out, even though there was no dispute on liability.

The Court of Appeal held that it was not appropriate to make a Protective Costs Order in a private case, but even if there was such a discretion, it would not have exercised it here.

The general purpose of a Protective Costs Order is to allow a claimant of limited means access to the court in order to advance their case without the fear of an order for substantial costs being made against them, a fear which would inhibit them from continuing with the case

 – see R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192.

In spite of the breadth of the court’s discretion under section 51 of Senior Courts Act 1981 and CPR 44, which the court here accepted gave it jurisdiction to make such an order “case law establishes that, as a matter of judicial policy and practice, we should not do so in the present case.”



Same old, same old right wing Court of Appeal, a serious blot now on the legal landscape.


The above quoted passage could have read:


“Parliament has told us in primary legislation that we can make Protective Costs Orders in private cases. The Civil Procedure Rules, approved by Parliament in secondary legislation, also say so.

But we do not like them because they give equality to individuals against massive multi-billion pound multi-national companies.

Cannot have that old boy can we?”


It really is a sickening judgment, parroting its own previous decisions in various cases, defying the will of Parliament to justify yet again defying the will of Parliament, and very obviously in this case depriving a very seriously injured person of access to justice.

Written by kerryunderwood

February 26, 2020 at 7:08 am

Posted in Uncategorized

4 Responses

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  1. This is another example where the courts take an approach which maximises rather than minimises the amounts recoverable. I fear this will be difficult to change as long as ex lawyers are deciding how much other lawyers are allowed to recover.


    February 26, 2020 at 11:11 pm

    • I agree- up to a point. I totally understand how non-lawyers may see the whole system as lawyers – and ex-lawyers sticking together. On the other hand lawyers often think that judges criticize lawyers over the level of fees that they were more than happy to receive when practising as lawyers. My problem here is that this decision is in clear breach of the will of Parliament.


      February 26, 2020 at 11:18 pm

      • Thanks – yes, it does feel that way much of the time. It would be good to have a truly independent system to assess costs matters, with a focus on keeping costs down.


        February 27, 2020 at 7:03 pm

      • There is a lot to be said for your suggestion.


        February 27, 2020 at 7:37 pm

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