A recent decision in the Oxford County Court in Waterfield and 25 others v Dentality and 3 others (No.2)  11 WLUK 223 has introduced another issue to be considered when applying for a Group Litigation Order (GLO), including claims for personal injury, where no claim form has been issued beforehand HHJ Clarke found that as no claim had been issued, no “proceedings” existed, as defined by CPR Part 7.2, to which QOCS protection could apply under CPR Part 44.13(1).
An application from a group of potential claimants for a GLO had been refused as inadequate and premature and it fell for the costs order to be decided. It was not disputed that the defendant was entitled to an order for costs in its favour, but the claimants argued that as the GLO application was clearly made in anticipation of proceedings, they enjoyed the protection of QOCS.
HHJ Clarke noted that the previous authorities relied on by the claimants all dealt with circumstances where the claimant already benefitted from QOCS protection and did not directly apply to the question before the court of whether the claimants benefitted from QOCS protection at all
Following an analysis of (a) the definitions of proceedings, claim for damages and personal injury in the CPR, (b) the scope of application of QOCS as set out in the CPR, and (c) the obiter comments in the authorities cited by the claimants, HHJ Clarke found that without any specific extension to the GLO regime, QOCS protection did not apply to a GLO application made before a claim form was issued. HHJ Clarke rejected the submission that the lack of a specific exclusion of a GLO application, in the same way that there was in CPR Part 44.13 for an application for pre-issue disclosure, prevented her finding that QOCS also applied to the much rarer pre-issue GLO application. It was observed that this did not deny access to justice, as a GLO application after the issue of a claim form was still an option.
It was not disputed that if a claim form had been issued, the claimants would have benefitted from QOCS protection. This decision highlights the need to make an early decision to issue a claim form before applying for a GLO. This would seem to go against the spirit of the CPR and the overriding objective of avoiding court proceedings if necessary, but is just another instance where the QOCS regime is not fully compatible with other CPR regimes. It is of course possible to stay an issued claim form to allow a GLO application to be made and determined. The application for a stay could be made with the GLO application, but only if the claimant’s legal team is ready to issue a claim form in advance of the application for a stay and or for a GLO.
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