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Insights
05/02/2025
On 28 January 2025, the Court of Appeal handed down judgment in Birley & Another v Heritage Independent Living Ltd, and in doing so determined that a party bringing a claim for personal injuries sustained as a result of a breach of confidence can claim the benefits of QOCS and seek to recover an ATE premium (and, where appropriate, an uplift under a CFA).
They also reaffirmed the long-standing position that mere negligence or error of approach do not amount to an abuse of process.
See: Nathaniel Birley & Anor v Heritage Independent Living Ltd – Find Case Law – The National Archives
Birley was an unusual case stemming from the wrongful disclosure of the deceased claimantโs criminal record by a putative employer. The deceased claimant issued proceedings for breach of confidence but died before they were served. Although Birley & Another were subsequently appointed as PRs, the Claim Form had lapsed the meantime, with DJ Nicolle striking out. She found that seeking to litigate on a lapsed Claim Form constituted an abuse and acceded to Heritageโs application to disapply the mandatory requirements of QOCS.
Birley appealed, with Heritage seeking to uphold DJ Nicolleโs order on the basis that even if the attempt to litigate on the lapsed Claim Form was not an abuse, the pre-action conduct of the claim (whereby Heritage had been sent anonymised letters of claim) had been abusive. The appeal was allowed by HHJ Owen, who held that the โmisguidedโ approach to anonymisation pre-issue was not an abuse.
This time Heritage appealed, arguing that Birley had been seeking to โcherry-pickโ between Pre-Action Protocols to secure the most favourable costs outcome had the claim succeeded, and that this was an abuse of process. They also argued that HHJ Owen had been wrong not to categorise the pre-action conduct as an abuse. The Court of Appeal disagreed, holding that the way in which the Transitional Provisions are drafted allows a category of cases where both QOCS and recoverable ATE premiums/uplifts are available. They also reaffirmed the position that mere negligence or error of approach do not amount to an abuse of process. Something more is required.
The Court of Appealโs judgment contains several salutary warnings, including as to the need for parties seeking to disapply QOCS to make their intentions known at the time of the relevant application. The Court of Appeal also had to deal with the dissolution of the appellant company shortly before the appeal was heard, and the substation of the โat-riskโ indemnity insurers in its place. It is (or should be) a stark reminder to those undertaking work for insurers that subrogated claims (or appeals) cannot take place in a vacuum; they must still be brought in the name of the legal rights holder.
James Wibberley acted for the successful Respondent (having been instructed and succeeded on the first appeal below).
To view James’ profile please follow the link – James Wibberley – Barrister – Guildhall Chambers
To also book James for cost specific instruction please contact Rob McDonald at [email protected] or call 0117 930 9000
Please click here, to explore our costs expertise
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