The Court of Appeal addresses whether QOCS can be disapplied in certain types of claims
The Court of Appeal’s decision in the case of Andrea Brown v The Commissioner of Police of the Metropolis & The Chief Constable of Greater Manchester Police  EWCA Civ 1724 provides long awaited judicial guidance regarding proper interpretation of the ‘mixed claim’ exception found at CPR 44.16(2)(b) of the Qualified One-Way Costs Shifting regime (‘QOCS’). In Brown, the Court of Appeal judges found that QOCS protection does not automatically shield a Claimant from an adverse costs order in proceedings that encompass both a claim for damages for personal injury and a claim other than a claim for damages for personal injury, a so called ‘mixed claim’.
The QOCS regime provides costs neutrality in claims for personal injury damages ensuring that an injured Claimants’ liability to pay costs does not exceed the sum of the damages and interest they recover in the proceedings. The decision in Brown does not seek to depart from this core principle but does offer a straightforward interpretation of the meaning of the ‘mixed claim’ QOCS exception. There had previously been opposing views on whether such a claim attracted QOCS protection or not.
In the first instance decision of Brown back in 2016, the Claimant was awarded £9,000 in damages for her successful claims for damages under the Data Protection Act, Human Rights Act and for misuse of private information. Her other claims included a claim for damages for personal injury which failed. The Claimant consequently failed to beat the Defendants’ Part 36 offer of £18,000. The trial Judge however granted the Claimant QOCS protection against the Defendant’s costs (over the sum that she recovered), on the basis that her injury followed as a consequence of each of her other claims. The Defendants appealed.
Drawing authority from the prior decisions of Jeffrey v Commissioner of the Metropolis  EWHC 1505 (QB) and Siddiqui v The Chancellor, Masters and Scholars of the University of Oxford  EWHC 536 (QB), the Court of Appeal found that the proper interpretation of CPR 44.16(2)(b) was that QOCS protection only applies to claims for damages for personal injury and not other types of claims meaning there was ‘no justification for allowing claims which are not claims for damages for personal injury (such as, for example, the data protection or police misconduct claims which were successful in the present case) to attract automatic QOCS protection’ (paragraph 32).
For the purpose of QOCS, the meaning of a claim for damages for personal injury was distinguished as being not just a claim limited to pain and suffering but including all other claims consequential upon the personal injury such as medical treatment costs, accommodation adaptions and loss of earnings. This finding dealt with arguments advanced by the Claimant that by limiting QOCS to claims for personal injury only, there would be a restriction to Claimants seeking access to justice. It was only claims not consequential or dependent upon the incurring of a personal injury that the ‘mixed claim’ QOCS exemption is likely to catch – such as claims for vehicle damage and alternative vehicle hire in road traffic accident cases or data protection act and police misconduct claims in Brown.
The Court of Appeal specifically found that there was nothing to indicate that automatic costs protection in respect of claims for non-personal injury damages was ever intended or required. To extend protection to such claims would require amendment to the CPR. In a recent consultation paper, the Ministry of Justice is not at present convinced that this is currently justified.
Applying or disapplying QOCS protection in mixed claims will ultimately fall to the judge’s discretion on costs with the impetus being on preserving costs neutrality in proceedings that ‘can fairly be described in the round as a personal injury case’ (paragraph 57) thus upholding the principles and intentions of QOCS. However, the judgment warns that it would be wrong to conclude that such discretion ought to always be exercised in favour of Claimants given the potential for abuse of the QOCS regime by tacking on a claim for personal injury damages in a mixed claim regardless of its merits. It would appear a balancing act is now required by judges in applying their discretion to disapply QOCS or not in mixed claims.
The decision in Brown ought to give confidence to parties defending mixed claims that QOCS can be disapplied and costs (or costs over the damages sum if paid) can be recovered in the event that mixed claims are successfully defended. Further, those defending civil actions against police forces can be encouraged that when dealing with cases that involve both personal injury and non-personal injury elements, costs are capable of being awarded against losing Claimants. Even in cases where recovery of those costs is unlikely, securing a costs order against a Claimant, particularly where the Claimant may be pursuing multiple claims, can be of significant procedural benefit. Finally, those dealing with RTA cases should also take note of the judgment. Whilst emphasis was placed upon ensuring costs neutrality, in cases where a non-personal injury aspect of the case is exaggerated, but falls short of fundamental dishonesty, it will be at the discretion of the judge to make a finding on the issue of costs. One wonders if a challenge may arise in this type of case in the future, seeking to argue that where the exaggeration is significant, the underlying costs neutrality of QOCS should be removed and an adverse costs order made against the Claimant.
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