On 2 October 2026 the Rugby Head Injury Litigation claims came back before the High Court (Senior Master Cook sitting with Cotter J and Master Stevens). Andrew Roy KC and Gemma Scott appeared for the Rugby League defendants.
Megan Griffiths was separately instructed by Weightmans on behalf of one of the Rugby Union defendants, who were also successful in their application.
These linked claims involve hundreds of current and former rugby players in both codes. The defendants are the governing bodies of the two codes. The claimants allege that these governing bodies failed to protect them from neurological injury. The claims form one of the largest group personal injury actions in British legal history.
On 21 August 2026 Senior Master Cook ruled that the claims stood automatically struck out as a result of persistent and egregious disclosure failures on the part of the claimants’ then solicitor. However, he also held that it was appropriate to grant relief from sanction and reinstate the claims on condition that claimants (1) fully complied with the outstanding orders; and (2) paid the defendants’ costs. The judgment can be found here.
The most recent hearing was to decided matters consequential to that judgment.
Stringent disclosure orders were made against the claimants, the claims to remain struck out if these were not complied with.
The condition that the claimants pay the defendants costs appeared more fraught because of One Way Qualified Costs Shifting (QOCS). This precludes recovery of costs against a personal injury claimant prior to the conclusion of the claim, and then only in certain circumstances and subject to certain limits.
Arguments were canvassed as to whether the claimants could and should be put to their election to waive QOCS protection, or alternatively whether that protection was displaced because the claims had in effect been struck out on grounds of abuse of process or that the claimants’ former solicitors had, with the claimants’ knowledge, engaged in conduct likely to obstruct the just disposal of the proceedings. Applications were also made for wasted costs against the claimants’ former solicitors and for non-party costs against the claimant’s litigation funders.
In the event, the court cut through these points by making conditional orders that unless the claimants (1) pay the defendants’ costs to be assessed immediately; (2) did so within 14 day days of those costs being assessed or agreed; and (3) paid costs on account within 14 days of the hearing, their claims would automatically remain struck out. QOCS therefore did not come into play. The claimants either complied with the payment orders or lost their claims.
No orders were made in respect of the applications for wasted and non-party costs on the basis that the need to determine these would only arise if the claimants did not satisfy the costs orders.
The ruling is of legal interest in that it appears to be the first reported case where personal injury claimants have been required to pay costs despite retaining the benefit of QOCS protection. However, as the claimants conceded the order against them during the course of the hearing thus obviating the need for argument, definitive answers to the questions of whether and in what circumstances QOCS can be circumvented or displaced in circumstances such as these must wait for another day.
Andrew Roy KC and Gemma Scott were instructed by Pinsent Masons.
