Shaw v Medtronic Corevalve LLC & Ors [2017] EWHC 1397 (QB)

[2017] EWHC 1397 (QB)Case No HQ15C05279
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/05/2017
Before
MR JUSTICE LAVENDER
Between
GABRIELE SHAW (suing as the personal representative of the estates of WILLIAM EWAN (deceased))Claimant(1) MEDTRONIC COREVALVE LLCDefendants(2) JEAN CLAUDE LABORDEDefendant(3) MEDTRONIC INCDefendant(4) MEDTRONIC LIMITEDDefendant(5) MEDTRONIC PLCDefendant
MR DAVID BERKLEY QC (instructed by Pearson Solicitors and Financial Advisers LLP) for ClaimantMR TOBY RILEY-SMITH QC (instructed by CMS Cameron McKenna) for DefendantsHearing Hearing date: 19 May 2017
Judgment ApprovedMr. Justice Lavender :
[1]I gave judgment in this action on 20 January 2017. I will refer to that as the First Judgment. In this judgment I will not repeat what I said in the First Judgment. Any term which I defined in the First Judgment will be used in the same sense in this judgment.[2]The First Judgment dealt with applications made by the First, Third and Fourth Defendants. For the reasons set out in the First Judgment:(1) I set aside both: (a) Master McCloud’s order of 2 June 2016 giving leave to serve the Claim Form out of the jurisdiction insofar as it related to the First and Third Defendants; and (b) the service of the Claim Form on the First and Third Defendants out of the jurisdiction.(2) I ordered that the Particulars of Claim was struck out insofar as it related to the Fourth Defendant.[3]I gave directions for the hearing of similar applications which had been made by the Second and Fifth Defendants, of the costs applications by the First, Third and Fourth Defendants and of a dispute as to the costs of the Claimant’s application for disclosure.[4]Since then:(1) the Claimant has discontinued her claim against the Fifth Defendant;(2) the Claimant has applied for permission to re-amend the Claim Form and to amend the Particulars of Claim as against the Second Defendant, Jean Claude Laborde;(3) the First, Third and Fifth Defendants have issued an application seeking orders intended to ensure that they can enforce any costs orders made in their favour notwithstanding the rules concerning qualified one-way costs shifting; and(4) the parties have agreed that there should be no order as to the costs of the Claimant’s application for disclosure.[5]So the applications which were argued before me were:(1) the Second Defendant’s application for either an order striking out the Particulars of Claim under CPR 3.4 or summary judgment against the Claimant under CPR 24.2;(2) the Claimant’s amendment application;(3) the First, Third and Fourth Defendants’ applications for their costs; and(4) the application by the First, Third and Fifth Defendants for orders intended to allow them to enforce the costs orders in their favour.[6]I begin with the Second Defendant’s strike out application. For the reasons given in paragraphs 23 to 36 of the First Judgment, I set aside service of the Claim Form on the First Defendant because the Claimant’s claim has been satisfied by reason of the judgment obtained in the First Action. What I said there applies with equal force to the Particulars of Claim as currently pleaded as against the Second Defendant, save only insofar as I referred in paragraphs 34 and 35 to the Claimant’s application for permission to serve the Claim Form on the First Defendant out of the jurisdiction. There was no such application in relation to the Second Defendant.[7]Indeed, the position is stronger in relation to the Second Defendant because (as I will explain) the Particulars of Claim does not plead a cause of action against the Second Defendant. It follows that the Second Defendant’s application must be allowed if I dismiss the Claimant’s amendment application, to which I now turn.[8]By that application, the Claimant seeks permission:(1) to re-amend the Claim Form so as to add a claim for damages for “battery (in damages/or in restitution)”; and(2) to amend the Particulars of Claim in a number of respects. The proposed amendments are not limited in their effect to the Second Defendant. I would not, in any event, be prepared to grant permission for amendments which purported to apply to the claims against the other Defendants. The Claimant has sought permission to appeal against my decision of 20 January 2017, so there is at least the possibility that the Court of Appeal may allow her claims against one or more of the First, Third or Fourth Defendants to proceed. It would not be right to permit the amendment of those claims at this stage.[9]It is worth looking at the original Particulars of Claim before turning to the proposed amendments. There is little mention of the Second Defendant in the Particulars of Claim. Most of the Particulars of Claim concern either CoreValve, i.e. the First Defendant, or Medtronic, i.e. the First, Third, Fourth and Fifth Defendants. The Second Defendant is only expressly referred to once in the Particulars of Claim, in paragraph 6, which states as follows:
“The Second Defendant was the proctor on behalf of CoreValve who was the lead operator responsible for the procedure under which the Deceased received the Valve.”
[10]However, the Second Defendant is not named in: paragraph 42, where it is alleged that CoreValve and Medtronic were in breach of the Consumer Protection Act 1987; paragraph 43, where it is alleged that CoreValve was negligent; paragraphs 53 to 55, where it is alleged that CoreValve and Medtronic were unjustly enriched; or paragraph 58, where it is alleged that CoreValve and Medtronic acted in such a way as to entitle the Claimant to aggravated and/or exemplary damages.[11]In short, therefore, the existing Particulars of Claim does not identify any cause of action against the Second Defendant. I turn now to the proposed amendments.[12]First, it is proposed to insert in paragraph 4 a sentence which says some more about who the Second Defendant is, as follows:
“The Second Defendant is an interventional cardiologist who, at all material times, was based in Toulouse, France and worked as Director of the Clinique Pasteur and who had assisted Jacques Seguin and thereafter CoreValve in the development of the Valve and acted as proctor on behalf of CoreValve.”
[13]Secondly, it is proposed to add in paragraph 4 the following sentence:
“The Second Defendant is sued as agent for CoreValve and Medtronic.”
[14]If the Second Defendant is sued as agent for the other Defendants, then:(a) it is difficult to see how there can be any cause of action against him personally; and(b) it is also difficult to see how any claim against him could survive the dismissal of the claims against his alleged principals.[15]Thirdly, it is proposed to amend paragraph 6 of the Particulars of Claim so as to allege that the First Defendant was not merely the lead operator, but the lead and primary operator.[16]Fourthly, it is proposed to amend paragraph 10 so as to allege that the late Mr Ewan was given certain advice by Dr Kovac. It will be recalled that the Claimant has already sued Dr Kovac and her claim against him has been satisfied.[17]Fifthly, it is proposed to amend paragraphs 11 and 13 to expand the pleaded case on the issue as to which Valve was used in the operation. These proposed amendments do not refer expressly to the Second Defendant.[18]Sixthly, it is proposed to amend paragraph 16 to allege that the Second Defendant was the proctor for the trials and investigations being carried out by Dr. Kovac and his team.[19]Seventhly, it is proposed to make various amendments to paragraphs 16, 23, 25, 26, 32, 46 and 50. These amendments make no reference to the Second Defendant, but appear to be intended to support the case as to the Second Defendant’s state of knowledge.[20]Eighthly, it is proposed to amend paragraph 42 so as to state as follows:
“CoreValve failed to comply with the Directive and the Regulations and announced in May 2007, within weeks of regulatory approval for the 5 years clinical investigation, that its devices had been CE Marked and which they intended to be relied on and put into circulation devices which they, together with the Second Defendant, knew were unsafe and untested and which thereafter caused the death of the Deceased.”
[21]Ninthly, it is proposed to amend paragraphs 43 and 45 to allege that the First Defendant acted with knowing dishonesty, as follows:
“43. Further or in the alternative, CoreValve was [“negligent” is deleted] knowingly dishonest in:- (1) representing and supplying the valve as CE Marked when the same was dangerous per se, and its safety and performance not having been established, and/or likely to cause injury; (2) failing to disclose to the deceased the known dangers of injury to him from the insertion of the valve; (3) failing to warn the Deceased of the risks associated with the insertion of the Valve; (4) failing to warn the Deceased that the valve was in its experimental stage in being used upon him.” “45. In the event, on 27 April 2007 a Declaration of Conformity for the 2 valves was signed notwithstanding that CoreValve knew one of which was not ever approved for clinical investigation and that the clinical investigation of its devices was in its infancy and proceeded to launch the devices on the market.” (1) representing and supplying the valve as CE Marked when the same was dangerous per se, and its safety and performance not having been established, and/or likely to cause injury; (2) failing to disclose to the deceased the known dangers of injury to him from the insertion of the valve; (3) failing to warn the Deceased of the risks associated with the insertion of the Valve; (4) failing to warn the Deceased that the valve was in its experimental stage in being used upon him.”
[22]Tenthly, it is proposed to insert a reference to the Second Defendant into paragraph 51, so that it reads:
“Responsibility for the acceptance of a patient lay also with CoreValve and the Second Defendant: the documents evidence that they had all patient imaging and medical records, including for the Deceased sent to them for approval of rejection.”
[23]Eleventhly, it is proposed to insert the following allegation at the end of paragraph 52:
“In the premises, the Claimant contends that the Defendants carried out an experimental procedure upon the Deceased which they knew was neither suitable nor necessary for him.”
[24]This allegation appears to be the basis for a proposed new paragraph 54, which states as follows:
“Further, the operating and experimentation upon the Deceased with experimental devices for a condition which he did not have by the Second Defendant without his consent constituted a battery for which the Deceased is entitled to damages.”
[25]Twelfthly, in relation to unjust enrichment it is proposed to amend paragraphs 53 and 55 (which will be renumbered as paragraph 56) so as to read as follows:
“53. By putting into circulation as CE Marked its experimental devices including the larger and untested valve and by supplying the same for use upon the public and causing or permitting the same to be implanted into the Deceased CoreValve, the Second Defendant and now Medtronic have sought to gain substantial gains such as to unjustly enrich themselves.” “56. CoreValve is now a subsidiary of Medtronic. The Claimant contends that Medtronic, and the Second Defendant upon the acquisition of CoreValve by Medtronic, have unjustly been enriched from the knowing, dishonest and cynical use of the Deceased for the purposes of developing the valve and equipment for commercial exploitation for which the Claimant seeks an account of profits made.”
[26]Thirteenthly, and finally, it is proposed to delete paragraph 58 (i.e. the claim for aggravated and exemplary damages). Paragraph 56, which concerns the claim for damages for personal injury, death and loss of amenity, is unchanged, save that it is renumbered as paragraph 57.[27]These proposed amendments introduce two, or perhaps three, new causes of action against the Second Defendant:(1) there is a new claim in battery in paragraph 54;(2) there is a new free-standing claim in unjust enrichment in paragraphs 53 and 56; and(3) there is said to be a new claim for fraudulent misstatement in paragraph 42. It is pleaded there that the First Defendant made a false representation in May 2007 and that the First and Second Defendants knew the truth, but no reliance on that statement is pleaded.[28]It is necessary to refer to section 35 of the Limitation Act 1980. Sub-section (2) provides as follows:
“In this section a new claim means any claim involving either: (a) the addition or substitution of a new cause of action.”
[29]Sub-section (1) then provides as follows:
“For the purposes of this Act any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced: (a) in the case of a new claim made in or by way of Third party proceedings on the date on which those proceedings were commenced; and (b) in the case of any other new claim on the same date as the original action.” (a) in the case of a new claim made in or by way of Third party proceedings on the date on which those proceedings were commenced; and (b) in the case of any other new claim on the same date as the original action.”
[30]This means that for limitation purposes any amendment which I permitted would “relate back” to 21 December 2015 when the Claim Form was issued. The new causes of action would be treated as having been raised on that date rather than today.[31]That is potentially significant for limitation purposes. Although the limitation issues have not been pleaded out, one possibility adumbrated by Mr Berkley is that the Claimant may be able to rely on the postponement of the normal six year limitation period by reason of section 32 of the Limitation Act 1980. If section 32 were applicable, as to which I say nothing, I cannot rule out the possibility that the postponed limitation period expired between 21 December 2015 and today. To that extent, at least, allowing the amendments would deprive the Second Defendant of a potential limitation defence.[32]This is an example of why the Act limits the circumstances in which amendments may be made to raise a new claim after the expiry of a limitation period. Sub-sections 35(3) to (5) provide as follows:
“(3) Except as provided by section 33 of this Act or by Rules of Court neither the High Court nor any County Court shall allow a new claim within sub-section 1(b) above other than original set-off or counterclaim to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim. (4) Rules of court may provide for allowing a new claim to which sub-section (3) above applies to be made as they are mentioned, but only if the condition specified in sub-section (5) below are satisfied and subject to any further restrictions the rules may impose. (5) The conditions referred to in sub-section 4 are the following: (a) in the case of a claim involving a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action.”
[33]The relevant rule of court is CPR Rule 17.4, which provides, insofar as relevant, as follows: “(1) This rule applies where:(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and(b) a period of limitation has expired under: (i) the Limitation Act 1980; … (2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.” (a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and (b) a period of limitation has expired under: (i) the Limitation Act 1980; …[34]As Tomlinson LJ held in Ballinger v Mercer Ltd [2014] 1 WLR 3597 (at paragraph 15), there is a three stage test which claimants need to satisfy before being granted permission to raise a new claim in an existing action. Those three stages are as follows:(1) Is it reasonably arguable that the amendments are now outside the applicable limitation period? (If not, then the amendment falls to be considered under CPR Rule 17.1.2(b).)(2) If the answer to (1) is yes, do the proposed amendments seek to add or substitute a new cause of action? (If they do not, then again the amendment falls to be considered under CPR 17.1.2(b).)(3) If the answer to (2) is yes, does the new cause of action arise out of the same or substantially the same facts as are already in issue in the existing claim? If not, the amendment cannot be allowed. If so, then the court has a discretion under CPR 17.4.2 to allow the amendment.[35]I was also referred to the helpful summary in paragraphs 46 to 49 of the decision of Stephen Morris QC, as he then was, in Diamandis v Wills [2015] EWHC 312 Ch.[36]As to the first of the three stages, there is clearly an arguable limitation defence here. These amendments concern an operation which took place on 26 September 2007. As to the second stage, it is plainly the case that the proposed amendments seek to add new causes of action. Indeed, as I have said, without these amendments there is no pleaded cause of action against the Second Defendant.[37]As to the third stage, the new causes of action do not arise out of the same or substantially the same facts as are already in issue in the existing claim. On one view, there are currently no facts in issue between the Claimant and the Second Defendant, because there is no cause of action pleaded against him. However, it is arguable that the facts referred to in CPR 17.4.2 are not limited to such facts as are already in issue in a claim against the same Defendant, but include facts which are already in issue on a claim against another Defendant. (That interpretation of the rule is, of course, complicated in the present case by the fact that the action is now only proceeding against the Second Defendant.)[38]It is relevant to note what Stephen Morris QC said in Diamandis v Wills at sub-paragraphs 49.3 and 4:
“(3) The purpose of the requirement at stage 3 is to avoid placing the Defendant in a position where he will be obliged, after the expiration of the limitation period, to investigate facts and obtain evidence of matters completely outside the ambit of and unrelated to the facts which he could reasonably be assumed to investigate for the purpose of defending the un-amended claim. (4) It is thus necessary to consider the extent to which the Defendants will be required to embark upon an investigation of facts which they would no previously have been concerned to investigate (Ballinger, paragraph 38). At stage three the court is concerned at a much less abstract level than at stage 2. It is a matter of considering the whole range of facts which are likely to be adduced at trial (Finlan at paragraphs 56 and 57 citing Smith v Henniker-Major at paragraph 96.”
[39]The Second Defendant has not hitherto had to investigate any facts, given that the Particulars of Claim do not plead any cause of action against him. He has certainly not had to investigate an allegation that he knowingly, dishonestly and cynically performed an unnecessary and unsuitable operation.[40]But even taking a wider view of the matter, the proposed amendments seek to introduce new and important allegations of fact which have not previously been made in the proceedings and which do not arise out of the same or similar facts to the facts already in issue, namely that the Second Defendant: knew that the procedure was neither suitable nor necessary for the late Mr Ewan; operated on him for a condition which he did not have; operated on him without his consent; and made use of him knowingly, dishonestly and cynically.[41]These are serious allegations to make against an individual. They are being made against him now for the first time nine-and-a-half years after the operation. The application to amend fails at this third stage.[42]In any event, even if the application had got over this hurdle, I would have held that this was not an appropriate case in which to exercise the court’s discretion to allow the proposed amendments. A number of factors point to this conclusion:(1) The proposed pleading that the Second Defendant is being sued as agent for the other Defendants is surely fatal to the claim against him personally.(2) As I have said, the potential effect of these amendments on the other Defendants is another reason for refusing permission.(3) The alleged claim for fraudulent misstatement is incomplete and, as it stands, discloses no cause of action against the Second Defendant and is bound to fail.(4) As I said in paragraphs 23 and 24 of the First Judgment, the Claimant’s claim for damages for pain, suffering and loss of amenity, loss of life and funeral costs is precluded by the Jameson principle.(5) So the claim in battery could only be brought as a means of recovering restitutionary damages. As the law presently stands, that is bound to fail, as I said in paragraph 31 of the First Judgment. It could be said that this claim is being used as a means of circumventing the Jameson principle. In related submissions, Mr Riley-Smith contended that: (a) The proposed amendments are an abuse of process of the kind referred to in Henderson v Henderson [1843] 3 Hare 100. He also referred in this context to the cases of Johnson v Gore Wood and Company No. 1 [2002] 2 AC 1 and Dexter v Vlieland-Boddy [2003] EWCA Civ 14. (b) The proposed new claim in battery, if and insofar as it is pursued as a claim for nominal damages, is an abuse of process for the reasons set out in Jameel v Dow Jones [2005] QB 946 and Ansari v Knowles [2013] EWCA Civ 1448. I do not propose to decide these arguments, which might arise (together no doubt with limitation issues) if the Claimant were to issue fresh proceedings against the Second Defendant, but their existence is a factor to be borne in mind on this application. The issues arising on the determination of these arguments may well be closely related to the issues arising in relation to limitation.(6) As I said in paragraph 36 of the First Judgment, Mr Berkley did not bring the claim for unjust enrichment as originally pleaded against the First Defendant within any of the recognised categories of claims for unjust enrichment. The same applies to the proposed claim in unjust enrichment against the Second Defendant. Insofar as the Claimant seeks either to claim restitutionary damages or to bring a claim in unjust enrichment, Mr Berkley contended that the Claimant should have the opportunity of seeking a development in the law. Indeed, in her application, the Claimant herself says that the proposed amendments “raise complex issues of developing law arising in very serious circumstances.” As the White Book says at paragraph 17.3.6, a claimant should not be granted permission to amend their claim in order to raise a claim which is not maintainable in established law. The possibility that the Supreme Court may develop or change the law is not sufficient to afford the claimant a real prospect of success at trial. The duty of the court is to apply the law as it stands. The authority which is cited there is: Mandrake Holdings Limited v Countrywide Assured Group Plc [2005] EWHC 311 Ch; and the same case in the Court of Appeal: [2005] EWCA Civ 638.[43]Consequently, I dismiss the amendment application and I strike out the Particulars of Claim insofar as it relates to the Second Defendant.[44]I turn now to costs. It is not disputed that the First, Third and Fourth Defendants should have their costs of this action, subject to the agreement that there is to be no order as to the costs of the Claimant’s disclosure application. As a result of the discontinuance, the Fifth Defendant is also entitled to its costs.[45]Mr Riley-Smith proposes to submit that I should order that those costs be assessed on the indemnity basis. I will deal with that issue after I have given judgment. In relation to costs, however, there is an issue as to the extent to which the Defendants can enforce any costs orders made against the Claimant. That is because of section 2 of CPR Part 44, i.e. the provisions concerning qualified one-way costs shifting. CPR 44.13(1) provides that:
“This section applies to proceedings which include a claim for damages; (a) for personal injuries; (b) under the Fatal Accidents Act 1976; or (c) which arises out of death or personal injury and survives for the benefit of an estate by virtue of section 1.1 of the Law Reform (Miscellaneous Provisions) Act 1934.” (a) for personal injuries; (b) under the Fatal Accidents Act 1976; or (c) which arises out of death or personal injury and survives for the benefit of an estate by virtue of section 1.1 of the Law Reform (Miscellaneous Provisions) Act 1934.”
[46]It is not disputed that the present action falls within this section. I set out the terms of the Claim Form in paragraph 10 of the First Judgment. The Claimant’s claims for damages, including aggravated, exemplary and restitutionary damages, were all claims which arose out of death or personal injury and which survived for the benefit of the late Mr Ewan’s estate.[47]The general rule is that set out in CPR 44.14(1):
“Subject to rules 44.15 and 44.16 orders for costs made against the claimant may be enforced without the permission of the court, but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.”
[48]Since there have been no orders for damages and interest made in the Claimant’s favour, this rule, if it applies, means that no costs order may be enforced at all against the Claimant.[49]There are a number of exceptions to the general rule. First, Mr Berkley told me on instructions that the exception in CPR 44.1.7 does not apply.

(a) :

“Orders for costs made against the claimant may be enforced to the full extent of such orders without the permission of the court where the proceedings have been struck out on the grounds that: (a) the claimant has disclosed no reasonable grounds for bringing the proceedings; …”
[50]That is the case in respect of the claim against the Fourth Defendant, as I held in paragraphs 16 to 20 of the First Judgment. In the light of this judgment, it is now also the case in relation to the Second Defendant.[51]In relation to the First and Third Defendants, I have held that the Claimant has disclosed no reasonable grounds for bringing the proceedings (see paragraphs 21 to 36 of the First Judgment). If the Claim Form had been served on them within the jurisdiction, I would have struck it out, but, because it was served on them outside the jurisdiction, the appropriate relief was to set aside service. As for the Fifth Defendant, Medtronic Plc, what I said in paragraphs 16 to 20 of the First Judgment applies mutatis mutandis to the Fifth Defendant, which is the ultimate parent of the Medtronic Group, but which was not even incorporated until 12 January 2014. I have not struck out the proceedings against the Fifth Defendant, because the Claimant has discontinued them. The Civil Procedure Rule Committee may care to reconsider the scope of CPR 44.15.1(a), but as presently drafted it does not apply to the First, Third and Fifth Defendants.[52]The Fifth Defendant seeks an order setting aside the notice of discontinuance, so that I can then hear and allow the Fifth Defendant’s application issued on 16 October 2016 for an order striking out the proceedings. The effect of this would be to bring the Fifth Defendant within the scope of the exception in CPR 44.15.1(a) to the general rule concerning qualified one-way costs shifting.[53]I am not persuaded that it would be appropriate to do this. Prima facie, the Claimant had a right to discontinue under CPR Rule 38.2. It was a proper use of that power, and to be encouraged, for the Claimant to recognise, in the light of the First Judgment, that her claim against the Fifth Defendant was not sustainable and to discontinue that claim.[54]The court has power under CPR Rule 38.4 to set aside a notice of discontinuance. That paragraph does not identify the circumstances in which the power should be exercised. The only guidance on that point in paragraph 38.4.1 of the White Book is to be found in two cases which are cited for the proposition that a court may set aside a notice of discontinuance as an abuse of the process of the court, but there was no abuse of process in the present case.[55]Mr Riley-Smith also drew my attention to the judgment of May LJ in Gillam v Browning [1998] 2 ALL ER 68 and to what Diplock J had to say about the meaning of abuse of process in Hunter v Chief Constable of the West Midlands Police [1982] AC 529. He also referred to the case of High Commissioner for Pakistan and the United Kingdom v National Westminster Bank Plc [2015] EWHC 55 Ch, in which Henderson J stated that, while abuse was a persuasive factor in favour of setting aside a notice of discontinuance, the reason for discontinuance was the key question. In that case, he found that the Claimant had sought to achieve a tactical advantage.[56]Looking at the facts of this case, the Fifth Defendant served an acknowledgement of service on 11 October 2016. On 17 October 2016, the Fifth Defendant’s solicitors wrote to the Claimant’s solicitors pointing out the weaknesses in the Claimant’s case against the Fifth Defendant. That prompted a response on 19 October 2016 from the Claimant’s solicitors to the effect that the Claimant did not intend to discontinue the claim at that stage against the Fifth Defendant. That in turn led to the application to strike out being made on 25 October 2016. I gave the First Judgment on 20 January 2017 and the notice of discontinuance was served in March 2017.[57]Mr Riley-Smith submits that I can infer from those circumstances that the Claimant’s intent in serving notice of discontinuance was to avoid the exception to the qualified one-way costs shifting regime. He submits that it is difficult to draw any other conclusion. However, it is striking that the Claimant has decided to discontinue against the Fifth Defendant, but is still, notwithstanding the First Judgment, seeking to maintain her claims against the First, Third and Fourth Defendants by way of an application to the Court of Appeal for permission to appeal.[58]In those circumstances, the possibility that the Claimant has simply recognised, in the light of the First Judgment, that the claim against the Fifth Defendant will not stand remains a real one. That is perhaps a realisation which should have occurred to the Claimant earlier, but it does not, in those circumstances, strike me that this is a case of abuse of process or anything sufficient to justify setting aside the notice of discontinuance.[59]The First, Third and Fifth Defendants seek an order under CPR Rule 44.16.2(b). That sub-rule provides as follows:
“Orders for costs made against the claimant may be enforced up to the full extent of such orders with the permission of the court and to the extent that it considers just where: … (b) a claim is made for the benefit of the claimant other than a claim to which this section applies.” … (b) a claim is made for the benefit of the claimant other than a claim to which this section applies.”
[60]This sub-rule applies if the Claim Form and Particulars of Claim include a claim which falls outside the scope of CPR 44.12.1. There were only two candidates for such a claim. The first is the claim for misrepresentation and deceit. This is referred to in the Claim Form, but not pleaded in the Particulars of Claim, as I noted in paragraph 12.2(d) of the First Judgment. I therefore ignore it. The second is the free-standing claim in unjust enrichment, but, as I said in paragraphs 32 to 35 of the First Judgment, it was unclear whether the Particulars of Claim did include a free-standing claim in unjust enrichment. Moreover, the Claimant did not obtain permission to serve the Claim Form out of the jurisdiction insofar as it contained a free-standing claim in unjust enrichment. Consequently, there was no such claim against the First and Third Defendants and CPR 44.16.1(b) does not apply to them.[61]Assuming that there is a pleaded free-standing claim in unjust enrichment against the Fifth Defendant, it overlaps entirely with the claim for restitutionary damages. The additional costs incurred in dealing with the free-standing claim are minimal and it would not be just to make an order under section 44.16.1(b) on that account. I would have reached the same conclusion in relation to the First and Third Defendants if I had found that CPR 44.16.1(b) applied to them.[62]Mr Riley-Smith invited me, in effect, to use the discretion which CPR 44.16.1(b) gives to remedy the perceived defects in CPR 44.15.1(a) to which I have referred. I do not consider that this would be an appropriate use of that discretion. Accordingly, I dismiss the application made by the First, Third and Fifth Defendants. [Further submissions.] Reasons for Refusing Permission to Appeal

[Further submissions.]

[63]I am asked to grant permission to appeal against two orders I have made today. First, the order striking out the claim against the Second Claimant, and, secondly, the order refusing the Claimant’s application to amend her claim against the Second Claimant.[64]As for the strike-out application, its fate was very much dependant on the fate of the amendment application and, therefore, if I were to grant permission to appeal on the amendment application I would grant it on the strike-out application.[65]So far as the amendment application is concerned, Mr Berkley has submitted that I was wrong to adopt what for shorthand I will call the narrow interpretation of CPR 17.4.2 as opposed to the wider one. However, what I said in my judgment was that it was arguable that the wider test was the right one, but that even on the wider interpretation the test was not met and, therefore, the Claimant did not satisfy what I described as the third stage in an application of this nature (borrowing the terminology of Tomlinson LJ).[66]For those reasons, I do not consider that it would be appropriate for me to grant permission to appeal.[67]I am asked to grant permission to appeal against my decision to refuse to set aside the notice of discontinuance. Ultimately, that was a decision taken on the facts of this case, which I rehearsed, and, consequently, it seems to me that it is not a matter where it would be appropriate for me to grant permission to appeal.[68]Finally, I am asked to grant permission to appeal against my decision not to make an order pursuant to CPR 44.16.1(b). It is submitted that I failed to take into account the fact that the dominant claim in this action is one which falls outside the scope of the QOCS protection. I dealt, in my judgment, with the nature of the claims in this action. In fact, as I analysed them, the only claims which fall outside the scope of QOCS protection are: misrepresentation and fraud, which is not particularised; and the free-standing claim in unjust enrichment, which entirely overlaps the claim for restitutionary damages.

Cited in 1 later judgment