Costs in Part 20 proceedings - beware the QOCS pitfall
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SM (Claimant) v Dwr Cymru Welsh Water (Defendant/Part 20 Claimant) and Rhondda Cynon Taf County Borough Council (Part 20 Defendant) [2018]
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The above case (in which Dolmans represented Rhondda Cynon Taf County Borough Council) serves as a timely reminder of the costs pitfall that can follow in Part 20 proceedings, even when ‘Qualified One Way Costs Shifting’ (QOCS) would otherwise apply and the Claimant’s claim in the main action fails.
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Background
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The Claimant alleged that, on 18 September 2013, she was walking along the footway, when she stepped on the edge of a defective stop tap cover that flipped up, causing her to trip and fall. The Claimant, therefore, issued a claim against the Defendant (Dwr Cymru Welsh Water) for compensation for personal injuries allegedly suffered as a result of her accident.
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The footway in question was part of the adopted highway, which was maintainable at the public expense by the relevant Authority (Rhondda Cynon Taf County Borough Council) and, as such, the Defendant/Part 20 Claimant subsequently issued Part 20 proceedings against the Authority for indemnity in relation to any damages and/or costs awarded in favour of the Claimant.
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The Claimant decided not to join in the Authority as a Second Defendant.
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Allegations
The Claimant alleged that the Defendant had been negligent. No breach of statutory duty was pleaded against the Defendant. However, the Defendant/Part 20 Claimant alleged that it was entitled to rely upon the Authority’s system of inspection and maintenance (and effectively any Defence under Section 58 of the Highways Act 1980), although the Defendant/Part 20 Claimant alleged (in the Part 20 proceedings) that the Authority had been negligent and in breach of Section 41 of the Highways Act 1980.
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Claim dismissed
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The Trial was eventually heard before a District Judge in the Pontypridd County Court, with all parties being represented at the hearing.
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Dolmans (on behalf of the Authority) had previously served a robust Defence to the Part 20 proceedings, citing that the footway was subject to a regular system of maintenance and inspection on an annual basis, that the footway had last been inspected prior to the date of the Claimant’s alleged accident on 9 November 2012 (when no defects were noted at the location) and that the Authority had no record of any similar complaints and/or accidents during the 12 month period prior to the date of the Claimant’s alleged accident.
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In addition, the Authority’s Defence specifically relied upon the decision in Gary Samuel v Rhondda Cynon Taf County Borough Council and Dwr Cymru Welsh Water (LTL 30.01.14), in which the Authority was again represented by Dolmans and where it was held that highway inspectors were not required to undertake a physical inspection of every stop tap cover/apparatus during their inspections.
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The relevant highways inspector gave oral evidence in support of the Authority’s Defence and was commended by the District Judge as a diligent employee.
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The District Judge (being satisfied with the Authority’s system and having reiterated the decision in Samuel) was content that there was nothing more that the Defendant/Part 20 Claimant or the Authority could have done to avoid the alleged accident and that both had acted reasonably. As such, the Claimant’s claim was dismissed and the Part 20 claim against the Authority also failed.
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The costs arguments
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The costs position between the Claimant and the Defendant was relatively straightforward. The Claimant had effectively ‘lost’ and was ordered to pay the Defendant’s costs of the main action in the usual manner. However, as this was a QOCS matter, the Defendant’s costs were not to be enforced without the Court’s permission.
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The Authority applied for its costs in the Part 20 proceedings to be paid by the Part 20 Claimant, arguing that QOCS did not apply in the Part 20 proceedings.
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The Authority relied upon the Court of Appeal’s decision in Wagenaar v Weekend Travel Limited & Serradj (31.07.14), in which it was held that QOCS protection did not extend to Defendants who were Claimants in third party or contribution proceedings.
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Notwithstanding the decision in Wagenaar and the fact that the Part 20 claim against the Authority had failed, the Part 20 Claimant argued that, unlike in the main action, costs should not follow the event in the Part 20 proceedings. The Part 20 Claimant argued that the District Judge had discretion under Part 44.2 of the Civil Procedure Rules and suggested that there should be no order as to costs in the Part 20 proceedings.
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In support of its argument, the Part 20 Claimant argued that the Authority possessed all of the evidence required to defend the Claimant’s claim and that the Part 20 Claimant, therefore, had no option but to issue Part 20 proceedings in order to rely upon such evidence.
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The District Judge was not convinced by this argument, finding that it was for the Defendant/Part 20 Claimant to ensure that all relevant evidence was before the Court without the need to issue Part 20 proceedings. Having regard to the decision in Wagenaar in particular, the District Judge held that the Authority was entitled to its costs in the Part 20 proceedings (which were summarily assessed) and ordered the Part 20 Claimant to pay the same within 21 days.
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Conclusion
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In this matter, the Defendant/Part 20 Claimant found itself having to effectively bear its own costs in the main action and pay all of the Authority’s costs in the Part 20 proceedings. The decision illustrates that care must always be taken before a party decides to issue Part 20 proceedings in an action and that the potential costs consequences of doing so should not be underestimated, even where QOCS would otherwise apply.
