Andrew Graeme Waring v Mark McDonnell (unrep., Brighton County Court, 6 November 2011)

The Claimant and Defendant had been cycling in opposite directions and collided head-on. Both sustained personal injury and brought claims for damages. The Judge found for the Claimant and dismissed the Defendant’s counterclaim. It was held that the Defendant was not entitled to the protection of qualified one-way costs shifting in relation to the costs of the Claimant’s successful claim. This was because he was not an unsuccessful claimant in the Claimant’s claim, but an unsuccessful defendant. The court expressly disagreed with the approach taken in Ketchion v McEwan (unrep., Newcastle & Tyne County Court, 28 June 2018) where it had been held that, in CPR 44.13, the word “proceedings” included both a claim and counterclaim.

HHJ Venn stated that, if the approach in Ketchion was followed, a number of undesirable consequences would arise, including the fact that insurers of defendants would be incentivised to bring counterclaims for damages for personal injury to ensure there would be no liability for costs.

December 15, 2018 · Editorial Team · Comments Closed
Posted in: Cases