In a commendably succinct judgment the Court of Appeal have given some important guidance in the operation of setting aside a notice of discontinuance, QOWCS and striking out for obstruction of the just disposal of proceedings. I shall try and be as succinct in this article.

Nicola Davies LJ giving the lead judgment in Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 told us two important things:

  • At [39] “I do not accept the defendant’s contention that a court is required to approach CPR 38.4 differently in a personal injury claim to which QOCS applies.”
  • At [52] the power in CPR r44.15(1)(c) is a consequence of the operation of CPR r3.4(2)(b), and “creates no new principle”.

The Court of Appeal also restated the following two points:

  • At [38] “there need to be powerful reasons why a Notice of Discontinuance should be set aside.”
  • At [48] and [49] “the wording of CPR 3.4(2)(b) creates a high bar for a strike-out with its focus on abuse of process or a Statement of Case… I would formulate the question thus: is the litigant’s conduct of such a nature and degree as to corrupt the trial process so as to put the fairness of the trial in jeopardy?”

For those unfamiliar with the case, in short the claimant had brought a personal injury claim arising from an accident at work involving a ladder. His Particulars of Claim stated the ladder was tied down, his statement said it was not tied down and the medical records threw in some other variations of the accident mechanism just to make things that little more difficult. Unsurprisingly the judge raised that this might be a problem, the claimant saw the writing on the wall and discontinued. All very familiar to any personal injury practitioner.

The defendant persuaded the district judge to set aside the notice of discontinuance in order to strike out the claim to set aside the protection of QOWCS. The claimant then persuaded the circuit judge on appeal that this was wrong. As you will have appreciated, the defendant did not manage to swing the Court of Appeal back to their way of thinking on the second appeal.

The important take away from this decision is that it appears to be authority for the proposition that QOWCS does not otherwise impact the application of the CPR. There is nothing to suggest that what Nicola Davies LJ said at [39], that the presence of QOWCS does not alter how the court should approach setting aside a discontinuance, is limited to the exercise of that precise power. Her rationale for that stance was that it would otherwise defeat the purpose of the costs shifting regime. This is reinforced at [52] given that the QOWCS exception is explained to be simply the consequence of the operation of a pre-existing rule, not a freestanding power or new principle.