The basis of QOCS is that the protection it affords against adverse costs applies to unsuccessful claims for personal injuries. These are conventionally argued in negligence against the defendant whose conduct caused the accident e.g. the negligent driver or employer. But should a statutory claim against an organisation which was not the tortfeasor be regarded as a claim for damages for personal injuries protected by QOCS?
The above is hardly a title to inspire fans of JK Rowling’s most famous character. However, there is a strong link to her best-selling books about the boy wizard in the recent decision on appeal in the road accident claim Cameron v Hussain. The unexpected common feature is bringing legal proceedings against unidentified people.
In 2003, Ms Rowling’s publishers, Bloomsbury, successfully sought an injunction to prevent persons unknown from publishing one of the Harry Potter novels before its scheduled release. The basis of the court’s discretion to allow an action against persons unknown has been developed further in the intervening decade and half, albeit generally in the context of injunctions rather than actions for damages.
In its judgment today in Moreno v The Motor Insurers’ Bureau, it could be argued that the Supreme Court used its decision in a case about interpreting a regulation specific to the MIB to make a wider point. That point is that English law (and Scottish & Northern Irish laws) should approach the arrangements in the European Motor Insurance Directives for compensating victims so as to provide compensation on a consistent basis regardless of how any particular claim might be pursued.