Kerry Underwood

About

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Chairman of Law Abroad. A Solicitor. Fellow of The Chartered Institute of Arbitrators. Former employment Judge. Author. Lecturer. Broadcaster. Advocate. Debrett’s people of today. Dictionary of International Biography. American Biography Institutes – Great minds of the 21st Century. Knight Commander of the Order of St John (for charity work). Lord Taverner’s Charity for disadvantaged children.

Written by kerryunderwood

June 15, 2011 at 1:23 pm

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  1. Dear Kerry,

    One issue I can’t find in your book relates to counterclaims. If C is QOCS protected but the claim fails, is C protected from paying D’s costs of defending the claim, D’s costs in the counterclaim, or both?

    Thanks,

    R

    Lost barrister

    August 3, 2016 at 12:40 pm

    • Robert

      The claimant is protected from paying the defendant’s costs of defending the claim but is not protected against a defendant’s successful counterclaim as, for that part of the action, the defendant is in fact a claimant and will her or himself enjoy QOCS protection in respect of losing the counterclaim but will be ordered costs, and will be able to enforce that costs order, if she or he is successful in that counterclaim.

      CPR 44.13(2) states:-

      “(2) In this Section, ‘claimant’ means a person bringing a claim to which this Section applies or an estate on behalf of which such a claim is brought, and includes a person making a counterclaim or an additional claim.”

      This rule is set out on page 14 and 176 of the book. The Practice Direction does not add anything.

      Clearly there is the possibility for complications where both parties win part of their claims and lose part of their claims, but I do not think that these are made any more difficult because of the existence of Qualified One-Way Costs Shifting: such situations cause costs problems anyway.

      The court must always make a costs order in the usual way; QOCS simply limits enforceability in certain circumstances and therefore the starting point is that a successful counterclaimant can enforce a costs order against a claimant, who for that part of the proceedings has become a defendant.

      I hope to insert an index when I prepare the second edition of the book. 

      Kerry

      kerryunderwood

      August 4, 2016 at 11:16 am


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