The undiscovered country

QOCS like so many areas of costs litigation, could be described as the gift that never stops giving. In 2018 alone for example, I found myself arguing two cases in the Court of Appeal on various aspects of the provisions.

An interesting recent decision of the Court of Appeal that has caught my eye is that of Brown v The Commissioner of Police of the Metropolis [2019] EWCA Civ 1724 which has something to say on the categorisation of mixed claims, a term not actually to be found in part 44 CPR, but which aptly describes the situation where part of an action is concerned with a claim that attracts QOCS protection, and part of an action includes a claim which does not attract QOCS protection. In such circumstances, what is the court at first instance meant to do, when determining if and to what extent the triumphant defendant can enforce its award of costs?

I wrote about the judgment in the High Court almost a year ago here: http://costsbarrister.co.uk/uncategorized/qocs-continued/. pondering the question of why rule 44.12 CPR was not engaged in the argument, to deal with the set off of the claimants cost against the defendants costs, almost as a preliminary to any wider considerations of clawback or enforcement.

The issues vexing the Court of Appeal were put in these terms:

1.This appeal concerns the rules relating to Qualified One-Way Costs Shifting (“QOCS”) at CPR 44.13 – 44.16. QOCS 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 present case, the claimant (whom I shall call ‘the appellant’) made various claims arising out of the respondents’ 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 appellant failed to beat the respondents’ Part 36 offer, resulting in adverse costs orders against her, the question is whether the appellant 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.

2. For the reasons set out below, I consider that an analysis of the relevant parts of the CPR, supported by the existing first instance authorities, produces a negative answer to that question. In setting out those reasons, and notwithstanding the very particular facts of this case, I have endeavoured to give some guidance as to the proper application of the QOCS regime to mixed claims.

Rule 44.16(2) provides as follows:

(2) 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) the proceedings include a claim which is made for the financial benefit of a person other than the claimant or a dependant within the meaning of section 1(3) of the Fatal Accidents Act 1976 (other than a claim in respect of the gratuitous provision of care, earnings paid by an employer or medical expenses); or

(b) a claim is made for the benefit of the claimant other than a claim to which this Section applies.

The court then grappled with the construction to be given to rule 44.16(2)(b)

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 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 includes 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. I refer to that issue again in Section 5.4 below.

So far so simple. But as in many contexts where costs issues are concerned, confident statements of principle expressed in disarmingly simple terms can be difficult to implement when considering where pounds and pence have to be calculated. The court therefore went on to elucidate how the issue of costs in an action where there were claims benefiting from QOCS and other claims not benefiting from QOCS fell to be practically dealt with, together with some trenchant comments along the way:

52. During the course of the appeal, much was made by both Mr Jaffey and Ms Darwin about the effect of Whipple J’s analysis on what might be called ‘ordinary’ claims for personal injuries. The court was given examples of plumbers with claims for loss of earnings or businessmen with damaged vehicles, with the suggestion that, as a result of Jeffreys, Siddiqui and the judgment below, QOCS protection would not be available to these (and numerous other) hypothetical claimants. In an undoubtedly memorable submission, Ms Darwin went so far as to suggest that, if the appeal was not allowed, it would mean that, by reference to the well-worn facts of Donoghue v Stevenson, Ms Donoghue would have lost her QOCS protection if she had been claiming for the cost of another bottle of ginger beer, as well as for damages for gastro-enteritis.

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.

The most interesting part of the judgement is the commentary in paragraphs 56 and 57, which illustrate how credit hire claims which have conveniently proceeded under the shield of QOCS may now do so no longer, in circumstances, where correctly identified, a road traffic accident will almost always result in a number of causes of action: for personal injury, and for property damage to the vehicle, conveniently brought in the same claim form, but in reality separate claims:

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).

Having opened a trap door, under the credit hire industry, the court then swiftly put in place a safety net, which for most purposes will nullify the scope of paragraph 56:

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 apply.

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.

60. The analysis set out above is sufficient to dispose of this appeal. However, the court heard a number of wider submissions about access to justice. Since a number of those submissions were based on what I consider to be false premises, it is appropriate to say something about that aspect of this appeal.

Finally the court went on to pooh-pooh the notion that a narrow construction, or application of QOCS rules, would impair access to justice:

68. Finally, much was made about the deterrent effect that the judgments in Jeffreys, Siddiqui and the present case may or will have upon claimants who are considering bringing proceedings. Again, that wide-ranging submission needs to be carefully analysed.

69. I accept that a claimant is more likely to bring a claim if he or she knows that there will be no adverse cost consequences of so doing. That is self-evident, so it is therefore unsurprising that the anecdotal evidence gathered together by the intervener is to the same effect. But it cannot sensibly be described as a deterrent to advise a claimant pursuing a claim for non-personal injury damages that the question of costs will be a matter for the judge’s discretion at the end of the case.

70. Finally, in connection with the deterrent argument, Ms Darwin made much of the need to ensure access to justice for victims of personal injury. Of course: that is what the QOCS regime is all about. But in the present case, the appellant was not the victim of personal injury: her claim for personal injury damages was rejected and there was no appeal. The appellant did have a valid (non-personal injury) claim under the DPA and HRA and in tort on which she was successful. Her difficulty was that she had refused the offers of a total of £18,000 and at the end of the trial recovered just £9,000. In other words, the proceedings following the appellant’s rejection of the offer, were a waste of time and money for all parties, having been necessitated only by the appellant’s refusal to accept much more than she eventually recovered. Should the appellant be able to avoid the usual cost consequences of her conduct, merely because she had a claim for damages for personal injury which the judge rejected? For all the reasons I have given, the answer must be No, and no wider considerations of access to justice, properly analysed, can make any difference to that conclusion.

One comment

  1. I’d like to see QOCS extended to other areas, it’s been good for access to justice.

    One thing which could perhaps be done is for the courts to actively strike out meritless claims earlier though, to ensure costs aren’t incurred unnecessarily.

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