QOCS and Exceptions

A recent CA case on QOCS provides some useful guidance on the potential exception under CPR 44.16(2)(b).

There is a clear indication that if the PI element of the claim is to attempt to bring the claim within the ambit of QOCS protection, then it may fall foul of the exception and leave the Claimant exposed to costs.  The issue will arise in mixed cases, e.g. RTAs with PI and large Credit Hire claims may not gain the benefit of QOCS protection.

Brown v Metropolitan Police Commissioner and another (Equality and Human Rights Commission intervening) [2019] EWCA Civ 1724

Court of Appeal, Civil Division: McCombe, David Richards and Coulson LJJ

18th October 2019.

The appeal concerned Qualified One-Way Costs Shifting (“QOCS”) at CPR 44.13 - 44.16. This provides automatic costs protection to a claimant with a claim for damages for personal injury, so as to ensure that, win or lose, such a claimant does not emerge from the proceedings with an adverse cost liability. 

In the Brown case, the claimant made various claims arising out of the defendants' wrongful obtaining and use of private information about her. It was what is often referred to as a 'mixed claim'; that is to say, her claims included a claim for damages for personal injury, but also included claims for non-personal injury damages and other relief. 

Claims for general damages for misuse of the appellant's personal data were upheld by the trial judge, but he rejected her claim for damages for personal injury. In circumstances where the claimant failed to beat the defendants’' Part 36 offer, resulting in adverse costs orders against her, the question was whether the claimant can automatically avoid the enforcement of those orders by relying on the QOCS regime, on the ground that one of her failed claims was a claim for damages for personal injury.

The claimant submitted that, because her claims had included a claim for damages for personal injury, she was protected by the QOCS regime against any adverse costs orders in an amount higher than the ￡9,000 she had recovered (i.e. that the overall result of the case should be cost neutral for the appellant). 

In a judgment given on 24th March 2017, Judge Luba agreed. He said:

“18. As I have already indicated, pleadings against both Defendants incorporate four heads or causes of action. If any one of them does not include a claim for personal injury damages, then it might be arguable that the terms of 44.16 (2)b are met. It seems to me, however, that on a consideration of the pleaded case here, set out in the Statement of Case advanced by the claimant against each of the two defendants, what is alleged is that injury has followed as a consequence of each of the four matters that I have already recounted in this judgment …

19. It is not a case, for example, in which there has been included a separate claim for some other form of damage or loss arising in consequence of that claim alone. It seems to me in those circumstances, on the fact of these particular cases, that the exceptions in CPR 44.16 on which the defendants would seek to rely if matters came to that point, is not in fact available.” 

The defendant appealed Judge's decision on the basis that he had wrongly granted the claimant the automatic protection of the QOCS regime in respect of claims which were not claims for damages for personal injury. 

In a detailed judgment dated 31st July 2018 [2018] EWHC 2046 (Admin)) Whipple J allowed the defendants’' appeal. 

She referred to a number of a decision of Morris J in Jeffreys v Commissioner of the Metropolis [2017] EWHC 1505 (QB), [2018] 1WLR 3633, a case decided after Judge Luba's judgment of 24th March 2017 on this very point. She concluded that, because this was a mixed claim, in that it included claims for damages for matters unconnected to personal injury, as well as a claim for personal injury damages, one of the express exceptions to the QOCS regime was triggered. Accordingly it was held that the automatic costs protection arising from the QOCS regime fell away, although Whipple J emphasised at [50] and [51] that, even though that protection did not automatically apply, costs in a mixed claim remained a matter for the court to deal with in a fair and flexible fashion. i.e. it is at the discretion of the court.

In Brown Coulson LJJ said: -

The Proper Interpretation 

31.    What is the proper interpretation of the words “other than a claim to which this Section applies”? It seems to me quite clear. “This Section” is the Section of the CPR setting out the QOCS regime. Rule 44.13(1) identifies the three types of claim which are covered by that regime: they are claims for damages for personal injury. Thus, if the proceedings also involve claims made by the claimant which are not claims for damages for personal injury (that is to say, claims “other than a claim to which this Section applies”), then the exception at r.44.16(2)(b) will apply. 

32.    I consider that this is the sensible and straightforward interpretation of the rule. It also produces a logical and fair outcome. The QOCS regime only applies to claims for damages for personal injury. It does not apply to other types of claim.2 There is therefore 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. It would be equally wrong to allow claimants with a mixed claim to use the fact that their claims include a claim for damages for personal injury to gain automatic costs protection in respect of their claims for non-personal injury damages.

33.    In my view, the exception at r.44.16(2)(b) was designed to deal with the situation where a claim for damages for personal injury was only one of the claims being made in the proceedings. In those circumstances, the automatic nature of the QOCS protection falls away. But of course, that is not the end of the matter: it then becomes a question of the judge's discretion. 

General guidance on the QOCS regime in ordinary personal injury cases - The starting point is that QOCS protection only applied to claims for damages in respect of personal injuries. Such claims would include not only damages due as a result of pain and suffering, but also things like the costs of medical treatment and the costs of adapting accommodation and would also encompass all other claims consequential upon that personal injury, including, for example, claims for lost earnings. 

A claim for damage to property, such as the cost of vehicle repairs as a result of a road traffic accident, was not consequential or dependent on the incurring of physical injury and fell within the mixed claim exception in r.44.16(2)(b). 

However, that did not mean that the QOCS regime was irrelevant. If the proceedings could fairly be described in the round as a personal injury case then, unless there were exceptional features of the non-personal injury claims (PI with high credit hire claims tagged on - beware), the judge deciding costs would be expected to endeavour to achieve a cost neutral result through the exercise of discretion. In that way, in most mixed claims of the type described, QOCS protection would continue to apply. 

To the extent that CPR PD 44 para.12.6 suggested a different approach, it was wrong and should be amended. However, it was important that flexibility was preserved, and it would be wrong in principle to conclude that all mixed claims required discretion to be exercised in favour of the claimant (paras 54-58).  Coulson LJJ: -

53.    Whilst this court should be wary about endeavouring to give comprehensive guidance in circumstances where the appeal arises out of a very different type of litigation, it does seem to me that there are some straightforward points that can be made which answer the submissions made, and which may be of assistance to those grappling with the outer limits of the QOCS regime.

54.    The starting point is that QOCS protection only applies to claims for damages in respect of personal injuries. What is encompassed by such claims? It seems to me that such claims will include, not only the damages due as a result of pain and suffering, but also things like the cost of medical treatment and, in a more serious case, the costs of adapting accommodation and everything that goes with long term medical care. In addition, contrary to the submissions advanced by Ms Darwin and Mr Jaffey, I consider that a claim for damages for personal injury will also encompass all other claims consequential upon that personal injury. They will include, for example, a claim for lost earnings as a result of the injury and the consequential time off work. 

55.    In other words, a claim for damages in respect of personal injury is not limited to damages for pain and suffering. For these reasons, as Whipple J noted at [60] of her judgment, claimants in a large swathe of 'ordinary' personal injury claims will have the protection and certainty of QOCS.

56.    I acknowledge that, in personal injury proceedings, another common claim will be for damage to property. For example, in RTA litigation, there will usually be a claim for the cost of repairs to the original vehicle, and the cost of alternative vehicle hire until those repairs are effected. Such claims are not consequential or dependent upon the incurring of a physical injury: they are equally available to a claimant who survived the accident without a scratch as they are to a claimant who broke both legs in the accident. They are claims consequent upon damage to property, namely the vehicle that suffered the accident, and therefore fall within the mixed claim exception at r.44.16(2)(b).

57.    But in such proceedings, the fact that there is a claim for damages in respect of personal injury, and a claim for damage to property, does not mean that the QOCS regime suddenly becomes irrelevant. On the contrary, I consider that, when dealing with costs at the conclusion of such a case, the fact that QOCS protection would have been available for the personal injury claim will be the starting point, and possibly the finishing point too, of any exercise of the judge's discretion on costs. If (unlike the present case) the proceedings can fairly be described in the round as a personal injury case then, unless there are exceptional features of the non-personal injury claims (such as gross exaggeration of the alternative car hire claim, or something similar), I would expect the judge deciding costs to endeavour to achieve a 'cost neutral' result through the exercise of discretion. In this way, whilst it will obviously be a matter for the judge on the facts of the individual case, I consider it likely that, in most mixed claims of the type that I have described, QOCS protection will – in one way or another – continue to apply4. It therefore follows that, as already advertised at paragraphs 16 and 17 above, to the extent that paragraph 12.6 of Practice Direction 44 suggests a different approach, I consider it to be wrong. It needs to be amended as soon as possible.

58.    It is however important that flexibility is preserved. It would be wrong in principle to conclude that all mixed claims require discretion to be exercised in favour of the claimant, because that would lead to abuse, and the regular 'tacking on' of a claim for personal injury damages (regardless of the strength or weakness of the claim itself) in all sorts of other kinds of litigation, just to hide behind the QOCS protection (as Foskett J warned in Siddiqui).

59.    Accordingly, I reject the suggestion that, if QOCS protection is not extended to cover every kind of mixed claim, then it will have a potentially adverse effect on personal injuries litigation generally. On the contrary, the absence of any cases hitherto in which this point has arisen in an ordinary personal injury claim only confirms my belief that costs in such cases have generally been properly addressed.