A circuit judge was wrong to order that qualified one-way costs shifting (QOCS) automatically applied to a claim about misuse of data because it also included a personal injury (PI) element, the High Court has ruled.
Mrs Justice Whipple said that in the event of so-called ‘mixed’ claims that have both PI and non-PI components – which can be exempt from QOCS under CPR 44.16(2)(b) – the court has complete discretion as to what action to take.
The Commissioner of Police of the Metropolis v Brown  EWHC 2046 (Admin) concerned the Metropolitan Police – with the help of Greater Manchester Police (GMP) – using data techniques it employs to detect crime to check on whether a police offer on sick leave had travelled to Barbados with her daughter without notifying her line manager of her whereabouts, in breach of police service procedures.
Andrea Brown succeeded in her claim for breaches of the Data Protection Act 1998 and the Human Rights Act 1998, and the tort of misuse of private information.
She also advanced a claim that she had sustained injury, in the form of depression. But His Honour Judge Luba QC rejected this, although he did accept that she had suffered distress, sufficient to warrant an award of £9,000 damages under the Data Protection Act. He ordered the Met to pay two-thirds of this and GMP the other third.
However, it was less than the Met’s part 36 offer and equalled the GMP’s part 36 offer. But HHJ Luba held that Ms Brown was entitled to QOCS protection as the PI claims were linked directly to the non-PI claims.
He was subsequently invited to rule on costs, on the assumption that he was wrong about QOCS protection, and ordered both forces to pay 70% of Ms Brown’s costs up to the date of their respective part 36 offers, and Ms Brown to pay their costs thereafter.
Whipple J said: “As matters stand, the police will be able to enforce the costs orders in their favour only to the extent of the award. The police will not be able to set off the costs owed by Ms Brown to them against costs owed by them to Ms Brown; the costs owed by them to Ms Brown will still have to be paid.
“The police will not be able to pursue Ms Brown personally for any costs due to them. The police will be substantially out of pocket.
“On the other hand, if this appeal is allowed, then, subject to the judge’s further decision about whether to exercise his discretion or not, the police will not only be able to enforce against the award, but they will also be able to set off the cross costs orders against each other, and they will be able to sue Ms Brown personally for any outstanding balance due to them.”
Allowing the appeal, Whipple J said that, where there was a claim for damages for personal injuries as well as for something else – the rule was clear that “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”.
She continued: “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.”
It was not necessary, she added, “to delve into whether there are separate causes of action or remedies claimed”.
Similarly, that the PI claim was “inseverable” from the non-PI claim was not important – it was still a mixed claim.
The Equality and Human Rights Commission intervened in the case to argue that QOCS should be construed so as to provide certainty for claimants making personal injury claims that they would not be subject to adverse costs orders, even if ultimately unsuccessful, subject only to narrow exceptions.
The commission said that last year’s High Court ruling in Jeffreys, which disapplied QOCS in a mixed claim against the police – on the basis that the PI element was a relatively minor part of the wider claim – had caused a “chilling effect” on such cases.
But Whipple J said: “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.”
Whipple J said there would be a hearing in September at which the circuit judge would now decide whether to exercise his discretion in light of the ruling.