Costs Orders | No QOCS Protection for Claimants Without Personal Injury Claims

BB & ORS v KHAYYAT & ORS [2025] EWHC 443 (KB)

This complex litigation involved multiple claimants (BB & Ors) against Doha Bank Limited, arising from claims related to events in Syria. The judgment primarily addressed costs issues following the striking out of claims by the Continuing and Discontinuing Claimants. Mr Justice Soole delivered a detailed ruling on several key procedural and costs matters, including the application of Qualified One-Way Costs Shifting (QOCS) and interim cost payments. He rejected the Discontinuing Claimants’ arguments for QOCS protection, finding that such protection applies only to individual claimants with personal injury claims. The court ordered interim payments totalling £1.3 million, and confirmed that the Continuing Claimants, whose claims were struck out as an abuse of process, have no QOCS protection.

True it is that the cases of Wagenaar and Brown concern proceedings with just one claimant; but the principles apply with equal force to proceedings which have multiple claimants. There is no principled basis for a claimant who makes no claim for damages for personal injuries to enjoy QOCS protection merely because he has joined in proceedings with other claimants who do make such claims.

Citations

Brown v Commissioner of Police of the Metropolis [2019] EWCA Civ 1724 QOCS protection applied to proceedings as a whole, but claims not for personal injury could be excluded under CPR 44.16(2)(b), based on the specific wording of the rule. Achille v Lawn Tennis Association Services Ltd [2022] EWCA Civ 1407 For QOCS purposes, “proceedings” referred to all claims made by a claimant, meaning a struck-out personal injury claim did not necessarily remove QOCS protection from remaining claims. Wagenaar v Weekend Travel Ltd [2014] EWCA Civ 1105 QOCS protection applied to individual claimants making personal injury claims, not to entire proceedings involving multiple claims from different claimants. Ontulmus v Collett [2014] EWHC 4117 (QB) Claimants acting together in litigation could be made jointly and severally liable for costs where they had pursued a case on a unified basis.

Track allocation housing disrepair CPR 46.13 settlement sum costs restriction SCCO

MRO fee markup cap 25% detailed assessment personal injury Senior Courts Costs Office

Security for costs refused CPR 25.27 very high probability success excessive estimate King's Bench

IPEC scale costs transfer Patents Court PD 30 para 9.2 costs caps Court of Appeal

Costs budget variation CPR 3.15A promptness significant development unfair prejudice Chancery Division

Costs budgeting inter partes proportionality high hourly rates AI disclosure Patents Court CPR 3E

Beneficiary personal liability section 71(3) Solicitors Act 1974 indemnity costs VAT self-supply SCCO

Summary assessment indemnity costs unless order payment on account disclosure default Chancery Division

Provisional assessment set aside CPR 3.1(7) points of dispute filing duty PD 47 para 14.3 SCCO

Fixed recoverable costs police claims CPR 26.9(10)(e) intentional tort exemption

Key Points

A claimant seeking Qualified One-Way Costs Shifting (QOCS) protection under CPR 44.13 must demonstrate that their own claim includes a claim for personal injury; the presence of another claimant with a personal injury claim in the same proceedings does not extend QOCS protection to them. [16-20]
Where all claims in proceedings have been struck out on the grounds of abuse of process, the claimant loses QOCS protection entirely under CPR 44.15(b), and adverse costs orders can be enforced in full without the court’s permission. [56-58]
The court has discretion under CPR 44.2(8) to order interim payments on account of costs, provided that such payments are reasonable in amount and do not unfairly prejudice the paying party. [35]

Joint and several liability for costs may be ordered where multiple claimants have pursued claims collectively and are jointly responsible for costs incurred, subject to limitations on liability where claims have been discontinued or struck out after a specific date. [36]
A contractual undertaking to hold money as security for costs does not automatically lapse when proceedings terminate; its enforceability depends on the precise wording of the undertaking, and disputes over its continued effect must be resolved through a formal application to the court. [29-33]

"[the] authorities show that in every case where QOCS protection falls for consideration, the exclusive focus is on the claim or claims of the particular claimant within the proceedings. If the claim(s) of the individual claimant in question do not include a claim for damages for personal injuries, there is no QOCS protection."

Key Findings In The Case

The Discontinuing Claimants did not plead claims for personal injury, and the court found no basis to infer that they had done so. As a result, they were not entitled to QOCS protection under CPR 44.13. [24-26].
The Continuing Claimants had pleaded claims for personal injury, but their claims were struck out for abuse of process. Because CPR 44.15(b) removes QOCS protection in cases of abuse of process, costs orders against them were enforceable in full. [56-58].
The court ordered interim payments of £1.3 million in total, comprising £300,000 for the Discontinuance Costs Application, £500,000 for the Jurisdiction Application, and £500,000 for the remaining costs. These sums were deemed reasonable in light of the total costs claimed. [35].

The court ruled that the Discontinuing and Continuing Claimants should be jointly and severally liable for the costs orders made against them, reflecting their collective pursuit of claims. However, the liability of the Discontinuing Claimants did not extend beyond 17 November 2023. [36].
The contractual undertaking provided by McCue Jury to hold £500,000 as security for costs did not automatically lapse upon the discontinuance of proceedings. The enforceability of this undertaking required formal determination through a separate application to the court. [29-33].

"Nor do I accept that anything in the pleaded case, including the Confidential Schedule, provides any basis to infer or imply that any of these Discontinuing Claimant must have suffered physical or psychiatric injury as a result of the pleaded events and/or therefore are to be treated as if they were making claims for damages for personal injury. "Accordingly there is no basis for the Discontinuing Claimants to have QOCS protection, whether under CPR 44.16(2)(b) or otherwise; nor therefore any reason to defer any of the outstanding costs issues on the basis that the discretion under that rule may fall to be exercised."

BB & Ors v Khayyat & Ors [2025] EWHC 443 (KB) was a case involving multiple claimants and defendants, culminating in significant determinations on costs. Initially, the claimants, including BB, CC, DD, EE, FF, GG, HH, and II, brought claims against Mr Moutaz Al Khayyat, Mr Ramez Al Khayyat, and Doha Bank Limited. The claims entailed various allegations, including claims for personal injuries and damages resulting from purported actions by members of the al-Nusra Front, which caused loss of property and livelihoods in Syria.

Several key developments led to the costs determination.

The first key procedural event was the application to disapply the presumptive costs rule under CPR 38.6 by the Discontinuing Claimants (EE, FF, GG, HH). This application was dismissed on 19 February 2025, with the court ordering that the Discontinuing Claimants bear the Bank’s costs for the application, subject to detailed assessment.

Subsequently, a hearing was held on costs consequential to the dismissal of the Discontinuance Application and the earlier striking out of the claims by the Continuing Claimants (BB, CC, DD, II) on 1 July 2024. During this hearing, the Bank pursued interim payments on account of costs, an issue fiercely contested by the Discontinuing Claimants.

The complexity of the costs determination was augmented by intricate issues such as the Qualified One-Way Costs Shifting (QOCS) protection and an existing Undertaking provided by the claimants’ solicitors, McCue Jury. The discretionary application of QOCS under CPR 44.16(2)(b) was central to the arguments against interim payments. Additionally, concerns arose over the continued validity of the Undertaking, which had been intended as security for the Bank’s costs of a Jurisdiction Application.

Issues Before the Court

The primary costs issue in dispute stemmed from the dismissal of the Discontinuance Costs Application and the striking out of the Continuing Claimants’ claims. Specifically, whether the Discontinuing Claimants should be subject to interim costs order under CPR 44.2(8) and the implications of the QOCS protection.

The Parties’ Positions

The Discontinuing Claimants argued against interim payments on two primary grounds. First, they proposed that the court should exercise discretion to grant QOCS protection per CPR 44.16(2)(b), arguing that such consideration should occur only after detailed assessment. They contended that the mixed nature of the claims, involving both personal injuries and property damages, allowed for a broad application of QOCS protection across all claims within the proceedings.

Conversely, the defendant, Doha Bank Limited, sought interim payments (totalling £1.3m) for costs incurred in the Discontinuance Application, the Jurisdiction Application, and the overall proceedings. They argued that the provisions under CPR 44.16(2)(b) only applied to individual claimants with personal injury claims, and thus, the Discontinuing Claimants did not merit QOCS protection. Additionally, they maintained the enforceability of the Undertaking and called for separate orders to streamline the costs process.

The Court’s Decision

Mr Justice Soole ruled in favour of awarding the Bank interim payments on account of costs, rejecting the Discontinuing Claimants’ submissions on both the QOCS and Undertaking issues.

Regarding the QOCS issue, the court reaffirmed that QOCS protection applied only to individual claimants within the proceedings whose claims included damages for personal injuries. This interpretation aligned with precedents such as Wagenaar v. Weekend Travel Ltd and Brown v Commissioner of Police of the Metropolis. As the Discontinuing Claimants’ pleadings did not substantiate any personal injury claims, they were not entitled to QOCS protection. Consequently, interim costs orders under CPR 44.2(8) were justified.

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