There is no automatic QOCS entitlement in cases involving both personal injury and nonpersonal injury claims. In such “mixed” cases the judge has discretion under CPR 44.16(2)(b) to determine whether it would be just to permit a defendant to enforce a costs order against the claimant.
THE COMMISSIONER OF POLICE OF THE METROPOLIS v BROWN [2018] EWHC 2046 (ADMIN)
CPR 44.16(2) : MIXED CLAIMS : QUALIFIED ONE-WAY COSTS SHIFTING : QOCS
This decision has been upheld in the Court of Appeal
“I respectfully think that the analysis in Jeffreys is correct … It is, I might add, also an important objective to ensure that the QOCS provisions are not abused by simply “dressing up” a nonpersonal injuries claim in the clothes of a personal injuries claim to avoid the normal consequences of failure in litigation…”: Siddiqui v Chancellor, Masters and Scholars of the University of Oxford [2018] EWHC 536 (QB), [2018] 4 WLR 62 [at 8]
This was an appeal concerning the operation of the qualified one-way costs shifting regime (“QOCS”) contained in Section II of Part 44 of the Civil Procedure Rules (“CPR”) insofar as it relates to mixed (ie PI and non-PI) claims.
Ms Brown was a serving officer in the Met until November 2013. In December 2011, while employed but on sick leave, she had travelled to Barbados with her daughter without notifying her line manager of her whereabouts. This was a breach of police service procedures. In preparation for possible later disciplinary proceedings against her, the Met submitted a request for information to the National Border Targeting Centre the police arm of which is managed by the GMP.
The GMP responded by email giving the Met information about Ms Brown’s trip to and from Barbados, attaching a copy of her passport and a print-out containing other information about her recent travel arrangements and passport details.
The Met then approached Virgin Atlantic, the relevant carrier. It asked for information using a “Personal Data Request Form”. The airline responded by email with details of the flight, passenger names (Ms Brown travelled with her daughter) and other details; a copy of the booking form was attached.
That information was used against Ms Brown in the disciplinary process which culminated in a finding that she had a case to answer but that a sufficient sanction would be “informal management action”.
Ms Brown then sued the Police. She claimed that they had misused facilities at their disposal for gathering data and information, which facilities existed for the purpose of detecting and preventing crime, and did not permit the requests or disclosures in this case.
Ms Brown pursued four causes of action:
(1) breaches of the Data Protection Act 1998 (DPA);
(2) breaches of the Human Rights Act 1998 (HRA);
(3) misfeasance in public office; and
(4) the tort of misuse of private information.
The Police conceded (1) and (2). Ms Brown lost on (3) and won on (4).
As part of her case on (1), (2), (3) and (4), Ms Brown advanced a claim that she had sustained personal injury, in the form of depression. The Judge rejected that claim but did accept that she had suffered distress, sufficient to warrant an award of damages under s 13(2) DPA.
The Judge made a single global award of general (compensatory) damages it the sum of £9,000 to reflect the three causes of action on which Ms Brown had succeeded.
The award was less than a Part 36 Offer made by the Met on 26 February 2016, and equalled a Part 36 offer made by the GMP on 2 May 2016.
CPR 44.13 provides, so far as relevant:
(1) This Section applies to proceedings which include a claim for damages –
(a) for personal injuries;
(b) under the Fatal Accidents Act 1976; or
(c) which arises out of death or personal injury and survives for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934,
…
The term “claim for personal injuries” is defined at CPR 2.3:
‘claim for personal injuries’ means proceedings in which there is a claim for damages in respect of personal injuries to the claimant or any other person or in respect of a person’s death and ‘personal injuries’ includes any disease and any impairment of a person’s physical or mental condition.
CPR 44.15 sets out the effect of QOCS, which is that orders for costs made against a claimant may be enforced without permission of the Court only to the extent of any orders for damages and interest made in favour of the claimant.
There are exceptions to the general rule. CPR 44.16(2)(b) provides:
Orders for costs made against the claimant may be enforced up to the full extent of such orders with the permission of the court, and to the extent that it considers just, where –
…
a claim is made for the benefit of the claimant other than a claim to which this Section applies.
The Practice Direction to Part 44 states as follows at paragraph 12.6:
“In proceedings to which rule 44.16 applies, the court will normally order the claimant or, as the case may be, the person for whose benefit a claim was made to pay costs notwithstanding that the aggregate amount in money terms of such orders exceeds the aggregate amount in money terms of any orders for damages, interest and costs made in favour of the claimant.”
The Judge held that Ms Brown was entitled to QOCS protection.
In his judgment, the Judge noted that the structure of CPR 44.16 is that it is subject to a “preliminary precondition, namely that one of the two sub-paragraphs (a) or (b) must be fulfilled”.
He concluded that Ms Brown’s claim was that the “injury has followed as a consequence of each of the four matters”. At [19] he said that:
“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”
Accordingly, 0n the facts of this case, he concluded that the exception in CPR 44.16 was not available. Ms Brown had the benefit of QOCS protection.
By order dated 22 January 2018, the Judge ordered the Met and the GMP to pay 70% of Ms Brown’s costs up to the date of their respective Part 36 offers; thereafter, he ordered Ms Brown to pay the costs of each of the Met and the GMP.
The effect of the Judge’s order was that:
i) the Police would be able to enforce the costs orders in their favour only to the extent of the award
ii) the Police would not be able to set off the costs owed by Ms Brown to them against costs owed by them to Ms Brown;
iii) the costs owed by them to Ms Brown would still have to be paid.
iv) the Police would not be able to pursue Ms Brown personally for any costs due to them.
Accordingly, the Police would be substantially out of pocket.
The Met advanced four overlapping grounds of appeal against the costs judgment:
1) Mischaracterisation of the claims under the DPA, the HRA and the tort claim for misuse of private information as personal injury claims, simply because they were pleaded as such; on a proper characterisation, they were not personal injury claims at all;
2) Conflation producing a result likely to be contrary to the intention of the rules, by permitting a person who brings a mixed claim with personal injury and non-personal injury elements automatically to enjoy QOCS protection in relation to all aspects of the claim;
3) Discretion rendered otiose, because if the Judge was right, there was no reason to have the discretion at CPR 44.16(2) (b) at all;
4) Proper construction, because properly construed, CPR 44.16(2)(b) confers a discretion on the Court to permit enforcement in relation to costs of other aspects of the claim – relating to the DPA, the HRA, the claim for misfeasance and the alleged tort of misuse of private information – which are claims “other than a claim to which this Section applies”.
The GMP advanced a single ground of appeal, namely that the Judge was wrong in law to hold that, because Ms Brown had brought a claim for personal injury damages under each of the four pleaded causes of action, the exception in CPR 44.16(2)(b) was not available in the event of an adverse costs order being made against her.
Ms Brown submitted a Respondent’s Notice. She sought to uphold the Judge for the reasons he gave and on two additional grounds:
1) Properly construed, Section II of Part 44 applies not just to a claim for personal injuries as the Judge held, but to any proceedings in which there is a claim for damages for personal injuries; thus, Section II would extend to a case where a separate claim for damages for personal injury was made within the same proceedings.
2) Further, CPR 44.16(2)(b) only applies to claims made for the benefit of the Claimant which are outside the scope of Section II of CPR 44.
The EHRC intervened in the appeal and argued QOCS should be broadly construed to promote access to justice and achieve the aims of the CPR and of the QOCS regime, specifically.
Their position was that QOCS should be construed so as to provide certainty for claimants making personal injury claims that they will not be subject to adverse costs orders, even if ultimately unsuccessful, subject only to narrow exceptions. The effect of [Jeffreys v Commissioner of the Metropolis [2017] EWHC 1505 (QB), [2008] 1 WLR 3633] has been to introduce uncertainty, which was having a chilling effect across a broad swathe of personal injury claims, which was inimical to the interests of justice and to the aim of promoting access to justice. They reported on data provided by the Police Action Lawyers Group which suggested that a high proportion of cases handled by lawyers within that group involved claims for personal injuries alongside other claims; she also recounted evidence to show, including examples of cases in human rights and other areas of law, where the claimant had been deterred because of the unsatisfactory costs position following Jeffreys. This, she said, evidenced the “chilling effect”.
The court was referred to three cases as being of direct relevance to the appeal.
Wagenaar v Weekend Travel Ltd [2015] 1 WLR 1968
In this case, a claimant had brought a claim seeking damages for personal injury against the defendant, who joined the third party claiming an indemnity or contribution. The claim was dismissed as was the third party claim The Court held that the claimant did benefit from QOCS protection:
“38 … The whole thrust of CPR rr 44.13 to 44.16 is that they concern claimants who are themselves making a claim for damages for personal injuries, whether in the claim itself or in the counterclaim or by an additional claim …”
The Court held that the defendant did not benefit from QOCS protection in relation to the third party claim, and was liable for the third party’s costs:
“39 It is true, however, that the word “proceedings” in CPR r 44.13 is a wide word which could, in theory, include the entire umbrella of the litigation in which commercial parties dispute responsibility for the payment of personal injury damages. I do not think that would be an appropriate construction. Instead, I think the word “proceedings” in CPR r 44.13 was used because the QOCS regime is intended to catch claims for damages for personal injuries, where other claims are made in addition by the same claimant. There may, for example, in the ordinary road traffic claim, be claims for damaged property in addition to the claim for personal injury damages, and the draftsman would plainly not have wished to allow such additional matters to take the claim outside the QOCS regime.
“40 Thus, in my judgment, CPR r 44.13 is applying QOCS to a single claim against a defendant or defendants, which includes a claim for damages for personal injuries or the other claims specified in CPR r 44.13(1)(b) and (c) , but may also have other claims brought by the same claimant within that single claim. Argument has not been addressed to the question of whether QOCS should apply to a subsidiary claim for damages not including damages for personal injuries made by such a claimant against another defendant in the same action as the personal injury claim. I would prefer to leave that question to a case in which it arises. CPR r 44.13 is not applying QOCS to the entire action in which any such claim for damages for personal injuries or the other claims specified in CPR r 44.13(1)(b) and (c) is made.”
Jeffreys v Commissioner of the Metropolis [2017] EWHC 1505 (QB), [2008] 1 WLR 3633
In this case, the claimant sued the Met for wrongful arrest, false imprisonment, assault and battery, malicious prosecution and misfeasance in public office arising out of the actions of the Met in arresting and detaining him for an offence of harassment. Morris J summarised the claim as follows:
“9 Thus, from the claim form and the particulars of claim, it is clear that by this action the claimant was seeking damages in respect of four distinct causes of action (assault, false imprisonment, malicious prosecution and misfeasance in public office). It is further clear that the claimant was seeking damages in respect of personal injuries to himself (both physical and psychological) and, importantly, that he was also seeking damages in respect of other loss (including loss of liberty and distress, humiliation, fear and upset, i e, sub-paragraphs (a) and (d) of the particulars of loss); and he was also seeking aggravated and exemplary damages.”
Following trial, the claim was dismissed. On costs, the trial judge decided that the case fell within the exception at CPR 44.16(2)(b). The claimant appealed on grounds that the exception in CPR 44.16(2)(b) only applied if the non-personal injury claims are divisible or separable from the personal injury claims, but that the claims for personal injuries in that case (both for physical injury and exacerbation of psychiatric condition) were not divisible or separable.
Morris J identified the effect of CPR 44.13 as being to bring a wide range of proceedings within the scope of QOCS, including cases where a claim for damages for personal injury played a very minor and subsidiary part of the claims advanced:
“37 In my judgment, in order to give meaning to the phrase “a claim is made … other than a claim to which this Section applies” in CPR r 44.16(2)(b), it must be interpreted as referring to “proceedings which include a claim other than a claim for damages for personal injury…
“39 Thus, as a matter of construction, I conclude that CPR r 44.16(2)(b) applies in a case where, in proceedings the claimant has brought a claim for damages for personal injuries and has also brought a claim or claims other than a claim for damages for personal injuries.”
He decided that the proceedings clearly did include claims other than claims for personal injury:
“43 In my judgment, and in agreement with the judge, it is clear that, even leaving out of account the claims in respect of the soft tissue damage and the exacerbation of the psychological condition, the claimant was advancing distinct claims for damages relating to other matters. In other words, claims other than claims for damages for personal injury. Accordingly, subject to the divisibility argument, there is no doubt that in this case CPR r 44.16(2)(b) applied.”
He rejected the argument that the exception did not apply where the claim for personal injury damages was indivisible:
“44 As to the second question, the alleged requirement for divisibility, in my judgment, there is no authority for the proposition that in order for CPR r 44.16(2)(b) to apply the personal injury claim and the nonpersonal injury claim must be “divisible”. There is nothing in the wording of the CPR provision itself to support this. Further, there is no reason in principle why there should be such a requirement. If the two claims are “inextricably” linked or otherwise very closely related, then that relationship can be reflected in the exercise of discretion (in the claimant’s favour) which arises once CPR r 44.16(2)(b) applies.”
In this case the claimant brought an action against his former university alleging that he had received a lower degree classification than he should have done as a result of inadequate teaching and a failure by his personal tutor to convey information regarding his depression and anxiety to the relevant authorities, with the result that he had suffered personal injury (an exacerbation of his pre-existing psychiatric condition) and had failed to gain entry to a leading US law school which caused damage to his career prospects. The claim was dismissed. On costs, Foskett J concluded that the claim fell within the exception at CPR 44.16(2)(b) and ordered the claimant to pay 25% of the university’s costs. He followed Jeffreys saying:
“8 … as a matter of construction of the rules, I respectfully think that the analysis in Jeffreys is correct and I propose to apply it to the extent that it is relevant in this case (see further at paragraphs 17-18 below). It is, I might add, also an important objective to ensure that the QOCS provisions are not abused by simply “dressing up” a nonpersonal injuries claim in the clothes of a personal injuries claim to avoid the normal consequences of failure in litigation…
“17 … the essential question being whether the claims advanced are for different forms of loss, one attributable to personal injury and the other not…
“34 In my view, the interpretation of this provision, as decided in Jeffrey, is clear and the converse is not reasonably arguable.”
46. CPR 44.13 extends to any proceedings which “include” a claim for damages for personal injuries. I would see this as a broad gateway, through which any proceedings which include a claim for damages for PI will pass. There are limits, as Vos LJ identified in Wagenaar. In that case, a third party claim for indemnity or contribution was held to be outside the scope of CPR 44.13 (and therefore outside QOCS completely). But that case also confirmed that an ordinary case, where a claimant seeks damages consequent on a road traffic accident (“RTA”), would be within scope, even if those proceedings included a claim for compensation for damage to the car as well as damages for personal injuries.
47. Wagenaar is a case about CPR 44.13 and not CPR 44.16, which is in point here. It is therefore of limited assistance in resolving this case.
48. Coming to CPR 44.16(2), the first issue is how to construe the words “a claim … other than a claim to which this Section applies”. This wording is problematic, because “this Section applies”, by operation of CPR 44.13(1), to “proceedings” not to “claims”. But I agree with Morris J that the solution is obvious: CPR 44.16(2)(b) refers back to CPR 44.13(1), and thus to “proceedings which include a claim other than a claim for damages for personal injury”.
49. Thus, CPR 44.16(2) applies in any proceedings where a claim has been made for damages for personal injuries as well as for something else (ie, as well as a claim other than a claim for damages for personal injury). This is a “mixed claim”.
50. Once that point is resolved, the construction of CPR 44.16(2)(b) becomes clear.
Mixed claims are within the scope of QOCS, by virtue of CPR 44.13(1). But CPR 44.16(2)(b) provides a mechanism to deal with mixed claims. The mechanism is quite simply to leave it to the Court at the end of the case to decide whether, and if so to what extent, it is just to permit enforcement of a defendant’s costs order.
51. In this way, the infinite variety of mixed claims can be dealt with fairly and flexibly, according to the justice of the case. Read in this way, the provision is entirely consistent with the overriding objective.
52. The key is in the definition of a “personal injury” claim, because it is only a personal injury claim which carries automatic entitlement to QOCS protection. Personal injury claims are claims for damages in respect of personal injuries (see the definition at CPR 2.3). The question to be asked in any given case seems to me to be this: in the proceedings, is the claimant claiming anything other than damages for personal injuries?
i. If the answer is no, then QOCS protection applies automatically (subject of course to one of the other exceptions applying, where the case is struck out or dishonesty is found).
ii. If the answer is yes, then the case is subject to the court’s discretion under CPR 44.16(2)(b).
53. This is a simple question to which, in most cases, I believe that there should be a simple answer. There may of course be cases where the position is more complex; but this is not such a case. In answering that central question, I am not persuaded that it is necessary to delve into whether there are separate causes of action or remedies claimed (in this case, the answer, if the question was put that way, would be that there were both other causes of action and other remedies being claimed). But mixed cases such as this one often present various inter-connected causes of action and claims for remedies.
It is in my judgment unnecessary to try to dissect them out into distinct causes of action, each with different component parts (which may or may not include personal injury) and remedies. That is not what is required by CPR 44.16(2)(b).
54. On my proposed approach, the example given by Vos LJ in Wagenaar can be resolved. A standard PI claim for damages for personal injury and damage to property is subject, at least in theory, to the discretion in CPR 44.16(2)(b) because the claimant is claiming for something beyond damages for personal injuries. In an ordinary claim arising out of an RTA, it might be thought unlikely that a Court would consider it just to remove QOCS protection, simply because the injured claimant also sought compensation for damage to their car. But the discretion is there, and in an unusual RTA, for example where the personal injury claim is modest but the main issue in the case relates to damage to the car, the Court might consider it just to remove QOCS protection.
55. In summary, I agree with the approach taken by Morris J and Foskett J, and with the reasons they each give for reaching their conclusions.
RESPONSE TO MS BROWN AND EHRC
56. I have considered the grounds advanced by Ms Darwin on behalf of Ms Brown. I am unable to reconcile them with the words, scheme or purpose of the QOCS regime. For reasons set out above, I reject Ms Darwin’s submissions that the Judge was right for the reasons he gave. His reasons were, in essence, that Ms Brown’s PI claim was not severable from the other claims she was advancing. But, like Morris J, I do not consider severability to be an issue; an inseverable claim for damages for personal injury is a mixed claim of the sort caught by CPR 44.16(2)(b).
57. The consequence of Ms Darwin’s two wider arguments is that QOCS would have automatic application to any proceedings which include a personal injury claim, or even, on her second alternative, to any proceedings related to proceedings in which a personal injury claim is advanced. This applies QOCS protection very widely. It would mean, at its most basic, that mixed claims would have automatic protection. That would render CPR 44.16(2) entirely redundant, and so it cannot be right. Further, such an outcome would not be just (and would not conform with the overriding objective), because it would permit claims to be dressed up as PI claims (precisely in the manner identified by Foskett J) in order to obtain the benefit of QOCS protection. The answer to this latter point cannot be to invite defendants to apply to strike out obviously abusive claims – which would lead to more cost of litigation and greater use of court time. The answer must be that the provisions are simply not intended to be open to abuse in so obvious a manner; they are intended to confer automatic QOCS protection only on claims for damages for personal injury (the goal at which the Jackson report was aiming in making the recommendation for QOCS to be implemented), leaving mixed claims at the discretion of the Court.
58. I have also considered the points made by the EHRC. I accept that the purpose of the QOCS regime is to secure access [to justice] to those who are bringing claims for damages for personal injury. But I reject Ms Lieven’s proposition that a claim for personal injury means any proceedings which include a claim for personal injury: that is not what CPR 44.13 read with CPR 2.3 says. The examples of cases where access to justice is said to have been inhibited, set out in Ms Collier’s witness statement, are all good examples of mixed cases. I make two points.
59. First, I accept that since the availability of public funding for personal injury and other cases has been reduced, many claimants find it harder to access justice. That will be for a number of reasons. One such is the deterrent of being potentially liable for an adverse costs order (noting that claimants with public funding are effectively protected from enforcement of a defendant’s costs order). But the QOCS regime was not intended to address wider issues of access to justice. It was intended to address a specific issue which arose in relation to claims for damages for personal injury, where claimants were forced to take out ATE insurance to protect themselves against adverse costs orders, and where the premiums for that insurance served to increase the costs of personal injury litigation I do not believe the QOCS regime can or should be construed in the way suggested by EHRC to promote access to justice. That would be to go far beyond its intended purpose.
60. Secondly, I also accept that for claimants involved in the sort of mixed claims described by Ms Collier (and of which this case is an exemplar), the position is imperfect because those claimants do not have certainty of QOCS protection at the outset; they are subject to the Court’s discretion on costs at the end of the day. But there are many, many personal injury claims which are not mixed claims and where no such unwelcome uncertainty arises. Many clinical negligence cases, claims arising out of accidents at work, RTAs, slips and trips and such like, will be claims for damages for personal injury only. In some of those cases, the claim will in fact arise under the Fatal Accidents Act 1976 or the Law Reform (Miscellaneous Provisions) Act 1934, both of which are expressly included in the scope of CPR 44.13(1) and neither of which, on my analysis, comes within the exception at CPR 44.16(2). These are ordinary PI cases. It is in this area that the problem addressed by Jackson LJ arose most acutely and where the pressing need for QOCS protection was identified. It is no surprise that mixed cases, which are inherently more complex, are not automatically subject to QOCS protection.
CONCLUSION
61. This appeal is allowed.
62. In summary, because Ms Brown advanced claims within the proceedings other than a claim for damages for personal injury, her case does come within the exception at CPR 44.16(2)(b). In consequence, the Judge does have a discretion to permit enforcement of the defendant’s costs order, to the extent he considers it just. I understand that a hearing is fixed before the Judge in September 2018 at which the Judge will consider whether it is appropriate, in light of this Judgment, to exercise his discretion under CPR 44.16(2)(b).
63. I am grateful to all counsel for their helpful submissions, both written and oral.
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