Qualified one-way costs shifting (QOCS) does not automatically apply to ‘mixed’ claims involving both a personal injury (PI) and non-PI element – but it is the starting point for standard PI cases – the Court of Appeal has ruled.
The court also called for a rapid rewrite of paragraph 12.6 of practice direction 44, which deals with the consequences of a QOCS exception being triggered.
Brown v Commissioner of Police of the Metropolis & Anor  EWCA Civ 1724 was a second appeal in a case where the Metropolitan Police – with the help of Greater Manchester Police (GMP) – used data techniques it employs to detect crime to check on whether a police officer 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. At first instance, 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 automatically entitled to QOCS protection as the PI claims were linked directly to the non-PI claims.
Mrs Justice Whipple overturned the decision, saying that in the event of mixed claims – which can be exempt from QOCS under CPR 44.16(2)(b) – the court has complete discretion as to what action to take.
Dismissing the appeal against this, Lord Justice Coulson, the deputy head of civil justice and lead judge in the court on costs issues, found “no justification” for allowing non-PI claims to attract automatic QOCS protection simply because there was also a PI claim in the mix.
But that was “not the end of the matter: it then becomes a question of the judge’s discretion”, he said.
Both the claimant and the Equality and Human Rights Commission – which intervened again, having done so in the High Court – argued that ‘ordinary’ PI claims would be adversely affected by Whipple J’s decision.
“The court was given examples of plumbers with claims for loss of earnings or businessmen with damaged vehicles, with the suggestion that… QOCS protection would not be available to these (and numerous other) hypothetical claimants.”
“In an undoubtedly memorable submission, Ms Darwin [for the claimant] 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.”
Giving guidance, Coulson LJ said a claim for damages in respect of PI was not limited to 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”.
It also encompassed all other claims consequential upon the injury, including lost earnings.
“For these reasons… claimants in a large swathe of ‘ordinary’ personal injury claims will have the protection and certainty of QOCS.”
Damage to property, however, such as the cost of repairs to a car and credit hire, were “not consequential or dependent upon the incurring of a physical injury” and so fell within the mixed claim exception.
But in such circumstances, Coulson LJ said, the fact that QOCS protection would have been available for the PI claim should be the starting point, “and possibly the finishing point too”, of any exercise of the judge’s discretion on costs.
He continued: “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.”
This paragraph provides that, where a CPR 44.16 exception 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”.
Coulson LJ said: “I strongly doubt the utility or accuracy of that paragraph. It purports to treat all of the exceptions in rule 44.16 in the same way and assumes that, if any of the exceptions are triggered, the result will, in a normal case, be adverse to the claimant.
“It seems to me that this fails to recognise that the exception at rule 44.16(1) will be triggered in circumstances of fundamental dishonesty (when an adverse costs order which removes QOCS protection will normally be justified) whilst the exception at rule 44.16(2)(b) – whatever its interpretation – is not intended to reflect adversely on the claimant and cannot, of itself, justify a similarly harsh approach.”
Equally, the judge emphasised that he did not mean that all mixed claims required 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”.
Coulson LJ dismissed the arguments made by the claimant and EHRC about the impact on access to justice of the ruling.
There was no reason not to make the costs subject to judicial discretion, while there was nothing to indicate that the certainty of automatic costs protection in respect of claims for non-PI damages was “intended or required”.
The judge did not accept that the decision would deter claimants: “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.”
He continued: “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.”