Introduction

The case of Birley & Anor v Heritage Independent Living Ltd ([2025] EWCA Civ 44) revolves around complex issues of costs management within civil litigation, particularly focusing on the interplay between cost provisions associated with media claims and the Qualified One-way Costs Shifting (QOCS) scheme applicable to personal injury claims. Heritage Independent Living Ltd, a recruitment agency for care workers, found itself at the center of this legal dispute following allegations of breaching the General Data Protection Regulations (GDPR) and the Data Protection Act 2018 by disclosing confidential information about Ms. Rosa Taylor’s previous convictions.

The crux of the appeal lies in determining whether the cost provisions, which previously allowed for the recovery of a success fee alongside an after-the-event (ATE) insurance premium in media-related claims, can simultaneously be applicable under the QOCS framework in personal injury claims. This commentary delves into the intricacies of the case, the court’s reasoning, and the broader implications for future legal proceedings in similar contexts.

Summary of the Judgment

Heritage appealed against a District Judge’s decision to strike out the claim against it due to late service of the claim form, which was primarily based on a purported abuse of process. The District Judge had also disapplied QOCS, directing the claimants to bear Heritage's costs. Upon appeal, HHJ Owen upheld two of the three grounds for dismissal but allowed the appeal on the third ground, emphasizing that the failure to serve the claim form on time did not amount to an abuse of process. Consequently, the Court of Appeal varied the costs order to reinstate QOCS and ultimately dismissed the appeal, affirming that the cost provisions related to media claims can coexist with QOCS in personal injury claims.

Analysis

Precedents Cited

The judgment extensively references several key precedents that shaped the court’s decision:

• Aktas v Adeptas [2010] EWCA Civ 1170: This case was pivotal in defining what constitutes an abuse of process, particularly emphasizing that mere delays do not inherently constitute such an abuse unless accompanied by deliberate or wilful misconduct.
• Brown v Commissioner of Police of the Metropolis [2019] EWCA Civ 1724: This precedent was significant in understanding how mixed claims—those involving both cost-shifting and other types of claims—are treated under the QOCS scheme.
• Singh v Dass [2019] EWCA Civ 360: Highlighted the importance of following pre-action protocols and cautioned against introducing new points on appeal that were not previously addressed.
• Hunter v Chief Constable of West Midlands Police [1982] AC 529: Provided foundational principles regarding abuse of process, underscoring the court’s reluctance to strike out claims except as a last resort.
• Associated Newspapers v the United Kingdom (No. 37398/21), 24 November 2024: Though not directly scrutinized in this case, it touched upon the success fee regime in media cases, influencing broader discourse on costs recovery.

These precedents collectively informed the court’s balanced approach in assessing both the procedural conduct of the parties and the substantive application of cost rules.

Legal Reasoning

The Court of Appeal meticulously dissected the legal arguments surrounding the applicability of cost provisions in media claims alongside QOCS in personal injury cases. The primary issue was whether the previous allowances for success fees and ATE premiums in media-related claims could coexist with the QOCS framework, which aims to protect claimants from bearing excessive litigation costs in personal injury lawsuits.

The court acknowledged that before April 2019, success fees were recoverable in publication and privacy proceedings. Simultaneously, the QOCS scheme, introduced to mitigate cost risks for claimants in personal injury cases, did not inherently exclude the recovery of such fees in media-related allegations. The Court of Appeal, referencing Frankling v J M A Ransom Ltd [2020] EWHC 1977 (QB), concluded that the legislative intent behind QOCS did not preclude its application in conjunction with existing media claim cost provisions.

Furthermore, the court addressed the argument of abuse of process presented by Heritage. Drawing from Aktas v Adeptas, it determined that the delayed service of the claim form lacked the requisite deliberate or wilful misconduct to constitute an abuse of process. Additionally, the errors in pre-action correspondence, such as anonymization and incorrect dates, were deemed insufficient to warrant striking out the proceedings, as they did not result in significant prejudice to Heritage.

The legal reasoning underscored the court’s reliance on established principles and its discretion in cost matters, particularly emphasizing that procedural missteps, absent malicious intent or significant disadvantage, do not equate to an abuse of process.

Impact

This Judgment has far-reaching implications for the nexus between media claims and personal injury lawsuits, especially concerning litigation costs. By affirming that cost provisions for media claims can coexist with the QOCS scheme in personal injury contexts, the court paved the way for more nuanced cost recoveries in complex litigation involving multiple claim types.

Future litigants and legal practitioners can draw from this precedent to better navigate cases that straddle different legal domains, ensuring that cost management strategies are both compliant and strategically sound. Moreover, the clarification that not all procedural delays or errors amount to an abuse of process provides a clearer framework for assessing similar situations, potentially reducing unnecessary dismissals based on technicalities.

Complex Concepts Simplified

Qualified One-way Costs Shifting (QOCS)

QOCS is a cost management mechanism designed to encourage access to justice by limiting the financial risks that claimants face in personal injury cases. Under QOCS, if a claimant loses, they may have to pay the defendant’s costs. However, if the claimant is successful, the defendant is required to pay the claimant’s costs, but only up to the amount of damages awarded. This system aims to balance the financial burden between parties, promoting fairness in litigation.

Conditional Fee Agreements (CFA) and Success Fees

A Conditional Fee Agreement (CFA) allows a claimant to proceed with litigation without incurring upfront legal costs. Instead, the claimant’s legal fees are contingent upon winning the case, typically structured as a success fee—a percentage of the damages awarded. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) restricted the recoverability of these success fees in most civil claims to curb excessive litigation costs.

After-the-Event (ATE) Insurance

After-the-Event (ATE) Insurance is a policy that a party can purchase after litigation has commenced to cover potential costs liabilities should the case be lost. This insurance mitigates the financial risk associated with uncertain legal outcomes.

Abuse of Process

Abuse of process refers to the misuse of the court’s procedures, either through deliberate delays, frivolous claims, or other actions that undermine the judicial process. Establishing an abuse of process typically requires evidence of intent or significant disregard for procedural rules.

Conclusion

The decision in Birley & Anor v Heritage Independent Living Ltd [2025] EWCA Civ 44 serves as a pivotal reference point in the landscape of civil litigation costs, particularly where media claims intersect with personal injury lawsuits. By affirming that cost provisions for media-related claims can coexist with the QOCS scheme, the Court of Appeal has provided clarity and flexibility in managing complex legal disputes involving multiple claim dimensions.

Additionally, the ruling delineates the boundaries of what constitutes an abuse of process, reinforcing that not all procedural missteps escalate to such a level unless coupled with deliberate misconduct. This reinforces the judiciary’s commitment to fair and equitable treatment of litigants, discouraging the dismissal of claims based solely on technicalities.

Overall, this Judgment underscores the importance of adherence to procedural rules while also recognizing the necessity for judicial discretion in upholding the principles of justice. It offers valuable guidance for future cases navigating the intricate interplay of cost management frameworks within diverse legal claims.