Mixed Claims and CPR 44.16(2)(b): Exceptions to Qualified One Way Costs Shifting (QOCS)

Exceptions to Qualified One Way Costs Shifting (QOCS)

The Court of Appeal has considered the correct approach to QOCS in “mixed” cases involving personal injury and non personal injury claims.

Affirming the approaches taken in Jeffreys v Commissioner of the Metropolis [2017] EWHC 1505 (QB) and Siddiqui v The Chancellor, Masters and Scholars of the University of Oxford [2018] EWHC 536 (QB) and upholding the decision of Mrs Justice Whipple DBE in The Commissioner of Police of the Metropolis v Brown [2018] EWHC 2046 (Admin) Lord Justice Coulson rejected arguments that in order for the exception to QOCS at CPR 44.16(2)(b) to apply the personal injury claim and the non-personal injury claim must be “divisible”.

“There is no basis for requiring the personal injury claim and the non-personal claim to arise out of either distinct facts or distinct breaches of duty. Indeed, it is inherently likely that they will arise out of the same set of facts. What is important ultimately is whether they are claims for different types of loss.” Jeffreys

He also rejected arguments that the reference to “claim” in r.44.16(1) was necessarily intended to encompass a cause of action.

“..it is wrong to construe these rules by reference to a cause of action, in circumstances where the rules themselves make no such reference. The words used in the relevant rules are “proceedings” and “claim” … There is no reference to “causes of action” in these rules, so to import such a concept, when the rule-makers have not done so, is not a proper method of interpretation… proceedings in which claims were brought for those two different types of loss, namely the damage to property and the personal injury, would fall within CPR 44.16(2)(b), even though they arose out of essentially the same facts and out of one and the same breach of duty.”

He ultimately held that whilst the exception at CPR 44.16(2)(b) applied in any case including claims made by the claimant which are not claims for damages for personal injury, it came down to a matter of discretion for the judge deciding 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 apply. It therefore follows that … 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.”

BROWN V COMMISSIONER OF POLICE OF THE METROPOLIS & ANOR [2019] EWCA CIV 1724