The Issue
The prospective costs of a Claimant appealing a first instance decision are a significant risk factor when deciding how to respond to such an appeal.
Applicable Area of the Business
Relevant to all litigated claims subject to fixed costs.
Brief Summary of Facts
The Claimant submitted a claim for personal injury which proceeded under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.
Liability had been admitted by the Defendant, but the parties were unable to agree settlement at Stage 2 and so the matter proceeded to a Stage 3 disposal hearing. The Defendant was not represented at the disposal hearing at which judgment was given for the Claimant.
The Claimant was unhappy with the damages amount ordered and so appealed seeking for the judgment to be set aside, for the matter to be remitted for a fresh disposal hearing and for the Defendant to pay the costs of the appeal.
QGLaw were appointed to respond to the appeal on behalf of the Defendant.
The Appeal
The Claimant’s appeal notice submitted three grounds of appeal: –
- The Trial Judge had improperly disregarded the psychologist’s report.
- The Claimant’s psychological injuries were not compensated.
- The Trial Judge’s approach to the award for Pain, Suffering and Loss of Amenity had under-compensated the Claimant.
The Issue Addressed
The underlying claim was subject to fixed costs. However, the costs of the appeal were subject to assessment at an hourly rate. The Defendant was, therefore, potentially liable to pay assessed costs on the appeal, which could be significantly more than the damages award, if the appeal was successful.
The Defence
Following review of the court documents, including the original disposal hearing transcript, the decision was taken to defend the appeal on the basis that: –
- The Claimant’s advocate had failed to advance a claim for psychological injury at the disposal hearing having made no submissions on a psychological injury and having made no reference to the psychologist report (including failing to seek the costs of the report).
- The Claimant had miscategorised whiplash injuries as non-whiplash and had failed to apply the approach to mixed damages per the decision in Hassam v Rabot 2024.
In the lead up to the appeal hearing, the Claimant continuously pushed the Defendant to consent to the appeal on the basis of the Defendant’s potential cost exposure. However, we maintained our position as we were confident that the Claimant’s appeal was without merit.
The Result
On the morning of the appeal hearing, shortly before the parties were to give their submissions, the Claimant withdrew the appeal.
The Claimant was ordered to pay the Defendant’s costs of defending the appeal which were summarily assessed by the appeal judge.
Key Practice Points:
- When making your decision to contest an appeal, consider the merit of the appeal, not just the potential costs exposure.
- Once you have made an informed decision, be prepared to stand by your position.