A High Court judge has disapplied qualified one-way costs shifting (QOCS) for part of a failed claim by a solicitor that Oxford University was to blame for a worse-than-expected degree that he said has affected his career to date.
Making an order that will cost Faiz Siddiqui up to £75,000, Mr Justice Foskett found that, while much of the claim was for personal injury (PI), there was also a claim for pure economic loss that was exempt from the impact of QOCS.
Mr Siddiqui took action over the teaching of one part of his modern history degree. In the substantive ruling, Foskett J found last month that, though there were some problems with the delivery of the course back in 1999/2000, the evidence did not show it was “negligently inadequate”.
He said the evidence also did not support the claimed consequences that Mr Siddiqui’s low mark in the paper made a material difference to the level of his degree and that the level of his degree led to his failure to get into US law schools or sustain a successful legal career.
As a consequential issue, Mr Siddiqui argued that the whole claim was for psychiatric injury and so fell within QOCS.
But Oxford – whose costs were £300,000 – said part of the claim also included claims in contract and tort for “straight financial loss as a result of alleged negligence”, such as loss of opportunity to study at a US law school.
This meant that it was a claim “made for the benefit of the claimant other than a claim to which [QOCS] applies”, as per rule 44.16(2)(b), and so the judge had discretion to make a costs order.
There was an argument over whether an overlap between the evidential basis for a PI claim and a non-PI claim precluded the operation of the rule, but Foskett J agreed with Mr Justice Morris’s ruling last year in another mixed claim, Jeffreys v The Commissioner of the Police of the Metropolis, that it did not.
He said “the essential question” was whether the claims advanced were for different forms of loss, one attributable to PI and the other not.
“That being so, I consider that the circumstances of the present case do fall within the exception provided by CPR 44.16(2)(b).”
The judge said the issue of the alleged effect of the ‘poor degree’ on the claimant’s ability to obtain a place at a US law school occupied “a not insignificant amount of time at the trial (and indeed in the preparations for trial)”.
He continued: “Obviously, part of that aspect of the overall case involved consideration of whether the defendant had been in breach of duty, an issue that had to be addressed in relation to the personal injury element of the claim too.
“I cannot see any reason in principle why I should not reflect some part of that time in the order made pursuant to the exception to the QOCS provisions, though plainly I must be careful not to make an order that unfairly deprives him of the legitimate QOCS protection to which, by virtue of the acknowledged personal injury element of the claim, he is entitled.”
Foskett J that his initial view was that an order for one-third of the costs would be appropriate, “but to ensure that the legitimate QOCS protection is not lost, I have reduced that proportion to 25%”.