Having the Civil Procedure Rules online allows anyone to access them for free, including litigants in person. The difficulty is that if one looks at the CPR online as it is today, without considering that rules changes are not always retrospective, then it can lead to some poor decisions.
I had this situation occur in a litigated personal injury case. Circumstances had changed where it was clear that the Claimant no longer had to pursue both Defendants, in fact the Claimant would have been open to criticism if they continued against both. The Claimant discontinued against one of the Defendants and has since settled the claim against the other Defendant.
The discontinued Defendant now seeks its costs.
The starting point
It can be easy to forget that the only effect of QOCS is the restriction of enforcement. So when on considers CPR 38.6, it is clear that the discontinued Defendant has a right to claim costs of Defending the claim upon settlement. I say a right because the presumption has a clause in so far that ‘unless the Court Orders otherwise’, meaning that it is within the Court’s ambit to make a different Order.
The ability for the Defendant to make any headway is limited by QOCS. The further issue is what CPR 44.14 says now is not necessarily what applies.
The ‘then’ and ‘now’
The previous wording of CPR 44.14 prior to the 6th April 2023 was as follows:-
Effect of qualified one-way costs shifting
44.14
(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.
Now the wording is as follows:-
Effect of qualified one-way costs shifting
44.14
(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for, or agreements to pay or settle a claim for, damages, costs and interest made in favour of the claimant.
Remember – only the later exists on the Civil Procedure Rules online.
Back to the case
The case had been issued in 2022 so the former version of CPR applied. The discontinued Defendant sought its costs following discontinuance. The other Defendant has settled.
The discontinued Defendant relied on Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654 to argue that even if damages were obtained from the remaining Defendant, the discontinued Defendant could enforce against those damages.
There were two issue with this point. Firstly, CPR 38.6(1) states ‘unless the court Orders otherwise’ so there was the possibility that a right to costs could still be contested (albeit the presumption started with the Claimant being liable for the discontinued Defendant’s costs). Secondly, the remaining Defendant was likely to settle given the change of circumstances. They have since settle but had not at the time the discontinued Defendant made their argument.
It became apparent that the discontinued Defendant may not have appreciated that CPR may have changed, but its effects were not retrospective.
Pre 6th April 2023 cases
The amendment to CPR was prompted by Ho v Adelekun [2021] UKSC 43 which determined that QOCS enforcement was limited to damages only. There was no option to set off against a cost award in favour of the Claimant. To make matters worse for the discontinued Defendant, the both Cartwright and University Hospitals of Derby & Burton NHS Foundation Trust v Harrison [2022] EWCA Civ 1660 would result that if the matter settled by Calderbank or Part 36, that would not meet the original CPR 44.14 definition of ‘order for damages’.
Consequently it meant that only if the matter went to trial and the Claimant got Judgment would there be an ‘order for damages’. As that was pure speculation, the discontinued Defendant could not possible succeed in asking the Court to assess damages.
So who do we know what applies to when?
The key was not looking at CPR, but the white book which gave the following advice in the commentary:-
In respect of proceedings issued before 6 April 2023, enforcement will not lie against damages or interest payable under an agreement contained in a schedule to a Tomlin order as it is not “an order for damages and interest”: Cartwright v Venduct Engineering Ltd [2018] 1 W.L.R. 6137, CA. Nor is an order made under r.36.22(9) (direction that the amount payable shall be reduced by the benefits paid since the date of the Part 36 offer): University Hospitals of Derby & Burton NHS Foundation Trust v Harrison [2022] EWCA Civ 1660.
White Book 2023 44.14.4
Only those with access to a White Book (and an updated version) would know this. Costing about £1,000 it would be unsurprising that some smaller law firms would be unwilling to replace this each year. For litigants in person, there is no way the majority at large can afford this.
What happened and could have happened?
Fortunately the fee earner for the discontinued Defendant questioned how the rules prevented their client from enforcing against the Claimant. This allowed me to refer to the rules, the date of its application and the page in the White Book.
I recently advised the fee earner that the matter settled by Part 36 and I expect that will be the end of the issue. Of course, had they read CPR 44.14 as it was today, they would have correctly read the an agreement for damages and costs would be the pool of money that they could enforce against.
The moral of the story is that the online CPR does not account for changes that are not retrospective and one should take care by referring to other sources such as the White Book.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.