High Court upholds decision to disapply QOCS in ‘mixed’ claim

Handcuffs: PI element was divisible from rest of claim

The High Court has upheld a ruling that disapplied qualified one-way costs-shifting (QOCS) under the little-used exception relating to ‘mixed’ claims, and in what is said to be the first case of its type, where the personal injury (PI) element was found to be a relatively minor part of the wider claim.

However, if there is a single, non-PI element of the claim which is inextricably linked to the PI claim, then QOCS will apply.

CPR 44.16(2)(b) provides an exception to QOCS where “a claim is made for the benefit of the claimant other than a claim to which this section applies”.

In Robert Jeffreys v The Commissioner of the Police of the Metropolis, the claimant failed in his monetary claim for false imprisonment, assault and battery, malicious prosecution and misfeasance in public office.

He also claimed that the events had exacerbated his pre-existing paranoid schizophrenia and caused swelling and bruising to his wrists. This PI element of the claim was also unsuccessful.

The defendant police applied to disapply QOCS, and at first instance HH Judge Freedland QC in Central London Crown Court said that rule 44.16(2)(b) was engaged.

“It would be, in my judgment, quite wrong for this to be characterised as a personal injury claim alone. It plainly was not… The majority of the claim was malfeasance…

“In my judgment, it is just and equitable in this case that there should be an order made against the claimant upon appropriate terms to be drawn up by the parties to the extent of 80% of the defendant’s costs. It is appropriate that I should apportion 20% to the personal injury element of the claim.”

He subsequently reduced the percentage to 70% as the exacerbation that Mr Jeffreys had suffered was 18 months and not six months, as had been submitted by the defendant.

Morris J handed down his ruling last week and according to the claimant’s solicitor-advocate, London-based Sophie Khan, she had argued that there was no divisibility or severability between the malfeasance claims and the personal injury claims.

The single joint expert had said that the exacerbation of his mental illness had been caused by the actions of the officers in detaining, arresting, handcuffing and prosecuting Mr Jeffreys. It was claimed that the swelling and bruising to his wrists were as a direct result of the handcuffing.

There is no transcript yet of the ruling, but Ms Khan has prepared a note and Lawtel has also reported it.

Morris J dismissed the appeal and found that the QOCS exception did apply. He said there was no authority, and nothing in the CPR or White Book guidance or Civil Justice Council reports on QOCS, to support the proposition that for rule 44.16(2)(b) to apply, the PI and non-PI claims had to be divisible.

In any case, he held that here the PI and non-PI elements were divisible. The malfeasance claims were claims in their own right and damages could have been awarded separately if the claim had succeeded.

However, Ms Khan reported that he went on to say that where there was a single non-PI element of a claim that was inextricably linked to the PI claim, the exception would not apply.

Morris J rejected Ms Khan’s second submission that there had to be an award for damages and/or interest made in the claimant’s favour before rule 44.16(2)(b) could be considered.

Ms Khan told Litigation Futures said it was an important decision that would help claimants where, for example, the non-personal injury claim was the cause of the personal injury.

“This judgment should be relied on by claimants who have a single ‘mixed claim’ if they are ultimately unsuccessful at trial,” she said.

Type 1 mixed claims are where damages for PI are sought alongside a non-monetary remedy in the same action (such as housing disrepair and public nuisance cases).

Type 2 mixed claims are cases where monetary damages for PI is the only remedy sought, but different elements of the award sought will be for the benefit of different people, such as the claimant and subrogating insurer (such as for the cost of repairing a claimant’s vehicle).

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