QOCS mix-up: “mixed” claims in the Court of Appeal

Articles | Fri 25th Oct, 2019

Introduction

1. Where a claimant brings a “mixed” claim (i.e. they claim damages for personal injury and in the same proceedings also claim non-personal injury damages or other relief), does the court have the discretion to disapply QOCS? If so, how will the discretion be exercised?
2. Those were the questions for the Court of Appeal in Andrea Brown v (1) Commissioner of Police of the Metropolis (2) The Chief Constable of Greater Manchester Police (The Equality and Human Rights Commission Intervening) [2019] EWCA Civ 1724 in which Lord Faulks QC of 1 Chancery Lane was Leading Counsel for the Respondent.

Mixed Claims

3. Mixed claims can arise in a variety of contexts. For example:
4. A claimant involved in a road traffic accident claims damages for whiplash and also losses relating to vehicle damage (e.g. the pre-accident value/repair costs or the cost of hiring a replacement vehicle).
5. A tenant alleges that their property is in disrepair and that the disrepair has had a detrimental effect on their health.
6. A claimant who was arrested and detained on suspicion of harassment sues the police for assault, false imprisonment, misfeasance in public office and malicious prosecution. He claims damages (including aggravated and exemplary damages) for pain, distress, anxiety and loss of liberty, soft tissue injuries and exacerbation of paranoid schizophrenia (the facts of Jeffreys v Commisioner of Police of the Metropolis [2017] EWHC 1505 (QB), [2018] 1 WLR 3633, in which Lisa Dobie of 1 Chancery Lane acted for the Defendant).
7. A former student sues his university claiming that inadequate teaching and personal support caused him to receive a lower degree classification which damaged his career prospects, and also caused him psychiatric injury in the form of worsening mental health problems. (the facts of Siddiqui v The Chancellor, Masters and Scholars of the University of Oxford [2018] EWHC 536 (QB), [2018] 4 WLR 62.)
8. An employer admits that they unlawfully obtained and used private information about a former employee and her daughter. The employee seeks damages (including for alleged personal injury) under the Data Protection Act 1998, the Human Rights Act 1998, and for breach of contract and misfeasance in public office (the facts of Brown itself).

Brown

4. Brown was a second appeal and the first time the Court of Appeal had grappled with the QOCS implications of mixed claims.
5. In Jeffreys, Siddiqui and on the first appeal in Brown, High Court judges had all reached the same conclusion: the court does have a discretion as to whether and to what extent QOCS should be disapplied in a mixed claim.
6. Undeterred, the Claimant and the Intervener in Brown sought to persuade the Court of Appeal that those judges were wrong and that, regardless of the result, and regardless of how insignificant the claim for personal injury damages might be to the proceedings as a whole, a claimant with a mixed claim had automatic and inviolable QOCS protection.
7. The Court of Appeal rejected that submission and held that a claimant bringing a mixed claim does not have the benefit of “automatic” QOCS protection.

The existence of the discretion – CPR r.44.16(2)(b)

8. CPR r.44.16(2)(b) reads:

(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) […]

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

9. “[T]his Section applies” to claims for damages for personal injury by virtue of CPR r.44.13 (1) and so “a claim … other than a claim to which this Section applies” means “a claim for something other than damages for personal injury”.
10. In effect, the Court of Appeal in Brown held (as had Morris J in Jeffreys, and Whipple J in the first appeal in Brown) that this rule should be read as if the underlined words were inserted into it:

(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) […]

(b) the proceedings include a claim which is made for the benefit of the claimant other than a claim to which this Section applies…”

11. This would bring the drafting of CPR 44.16(2)(b) in line with CPR r.44.16(2)(a) which confers the same discretion where “the proceedings include a claim which is made for the financial benefit of a person other than the claimant or a dependant” such as a subrogated claim or a claim to recover credit hire charges. It is surprising, and regrettable, that CPR r.44.16(2)(b) was not drafted this way in the first place.
12. When read in this way, it is clear that the Court does have a discretion to disapply QOCS in mixed cases.

The exercise of the discretion – misguided guidance

13. At paragraphs 52-59 the Court of Appeal gave some guidance on what the effect of the discretion might be in what it termed “ordinary claims for personal injuries”. The guidance was couched with the usual caveats that the exercise of the discretion is a matter for the judge on the facts of the individual case.
14. The guidance was no doubt well-intentioned, but it must be said with respect that it throws up at least as many problems as it solves. The thrust of it seems to be that in “ordinary” personal injury cases and/or those which “can fairly be described in the round as a personal injury case” a judge would usually be expected to seek to achieve cost neutrality (i.e. the claimant not out of pocket) unless there is some exceptional features of the non-personal injury claims, such as gross exaggeration of the car hire claim or something similar and/or the personal injury claim was “tacked on” in an abusive attempt to “hide behind” QOCS protection: see paragraphs 57-58.
15. The first issue is obvious: what is an “ordinary” personal injury case, or one which is a personal injury case “in the round”? The Court gave little if any guidance as to this, beyond giving RTA litigation as an example.
16. The second issue is more fundamental. The guidance seems predicated on the notion that in most “ordinary” mixed personal injury claims (howsoever defined) QOCS should continue to apply to all of the defendant’s costs. But why should that be the case?
17. Firstly, that it is not what the rule says. It confers a broad, unfettered discretion. Why should it only be exercised in “extraordinary” cases; or ordinary cases with “exceptional features”? There is nothing in the wording of the rule that suggests anything like that.
18. Secondly, the notion upon which the guidance is predicated is wrong. The clue to the origin of the error is at paragraph 17 of the judgment. There, the Court doubted the accuracy of paragraph 12.6 of Practice Direction 44 on the basis that “the exception at r.44.16(2)(b) … is not intended to reflect adversely on the claimant and cannot, of itself, justify a similarly harsh approach [to that under r.44.16(1), which deals with fundamentally dishonest claims].”
19. The answer to that is that, properly interpreted, r.44.16(1) and r.44.16(2)(b) do not lead to a “similarly hard approach”, for the reasons set out below.

The correct interpretation

20. This problem arises, I respectfully suggest, because the Court of Appeal did not fully appreciate that the most important words in CPR r.44.16(2)(b) are “to the extent that it considers just”. These are conspicuous by their absence from CPR r.44.16(1), which provides the exception to QOCS in claims which are found on the balance of probabilities to be fundamentally dishonest.
21. The effect of CPR r.44.16(1) is that where the claim (or, for the sake of consistency, the proceedings) is/are found on the balance of probability to be fundamentally dishonest then the claimant will not have the benefit of QOCS protection for the costs of the whole proceedings (including the costs relating to any part of those proceedings which was not dishonest). That both (a) reflects the perniciousness of dishonesty in the administration of justice and (b) neatly ties in with and reflects the position under Criminal Justice and Courts Act 2015, Section 57, whereby a claimant who has been fundamentally dishonest will see any part of their claim that was honest dismissed unless they would suffer substantial injustice as a result.
22. By contrast, where a mixed claim is brought then the claimant will not have QOCS protection but only to the extent that the court considers it just. This is not, nor should it be, a binary question, as it is under r.44.16(1) (i.e. does the claimant have QOCS protection or not?); rather, it is: to what extent is it just that the claimant should have QOCS protection?
23. It would rarely be just to deprive a claimant of QOCS protection over that part of the defendant’s costs referable to the personal injury claim in honest proceedings. To do so would put a claimant who brings a mixed claim in a less advantageous position to that of a claimant bringing the same personal injury claim without the non-personal injury elements.
24. That leaves those of the defendant’s costs which are referable to the non-personal injury claim(s) in the proceedings. It must be relevant when deciding if it is just for the defendant to be able to enforce those costs to ask whether the non-personal injury claim, if litigated alone, would have resulted in an enforceable costs order in the defendant’s favour.
25. If it would not have done (for example, because it would have been allocated to the small claims track, where there is a presumption against costs shifting), then it would rarely be just for the defendant to acquire an enforceable costs order against the claimant in respect of the non-personal injury costs simply because the claimant also brought a personal injury claim as well.
26. The reverse is equally true. If the non-personal injury claim litigated alone would have resulted in an enforceable costs order against the claimant, then why should such a claimant be placed in a more advantageous position by virtue of having litigated it alongside a personal injury claim? There is nothing in the policy considerations which gave rise to the QOCS regime which could or should lead to such a conclusion.
27. Taken together, these points answer what appear to have been the in terrorem submissions made by the Claimant and Intervener in Brown, which conjured up the prospect of claimants with mixed claims being discouraging from bringing them as a result of the uncertainty as to whether they would ultimately be afforded QOCS protection.
28. A court called upon to exercise this discretion as I suggest it should be exercised is faced with the issue of apportioning costs between the personal injury and non-personal injury elements of the claim – but such an issue is inherent in the very existence of a discretion and it should be possible for courts to achieve a just outcome without insurmountable difficulties.

Conclusion

29. The Court of Appeal has provided welcome clarification as to the existence of the QOCS discretion in mixed cases. Unfortunately, the guidance it has given as to the exercise of that discretion is practically and conceptually flawed.