Beware! Claimant bringing a mixed claim does NOT have the benefit of “automatic” QOCS protection.

 

Reuben Glynn                        Managing Director

If you are a litigator bringing “mixed” claims, you need to read the case of:

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.

The Court of Appeal has answered the question of:

“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?”

The Case

The respondents unlawfully obtained and used private information about the appellant and her daughter. She brought claims for damages under the Data Protection Act 1998 (“DPA”) and the Human Rights Act 1998 (“HRA”), and for breach of contract, misfeasance in public office, and the misuse of private information. The respondents admitted liability under the DPA and the HRA. The claim for damages for breach of contract was not pursued. The claims for damages for misfeasance and misuse of private information went to trial. The claimant lost on the former but won on the latter.

HHJ Luba QC presided over the trial on liability. His ex tempore judgment was given as long ago as 30 July 2016. He rejected the claimant’s claim for damages for personal injury arising out of the respondents’ conduct. Specifically, he found that the claimant had not shown that her depression had been caused or materially contributed to by the respondents’ wrongful actions.

This finding was also reflected in Judge Luba’s written ‘Judgment on Remedy’ dated 7 October 2016. The outcome of that judgment was that the claimant was awarded general damages under the DPA and HRA, and for the misuse of private information, in the sum of £9,000, apportioned on a two thirds/one third split between the first and the second respondents. He rejected her claims for aggravated damages and exemplary damages. He also rejected the appellant’s claims for declarations and erasure/destruction of information.

There were then arguments about costs. The respondents had made Part 36 offers in the total amount of £18,000. The appellant had therefore comprehensively failed to beat those offers. In consequence, Judge Luba ordered the respondents to pay 70% of the appellant’s costs up to the date of the offers but ordered the appellant to pay the respondents’ costs thereafter.

However, the appellant argued that, because her claims had included a claim for damages for personal injury, she was protected by the QOCS regime against any adverse costs orders in an amount higher than the £9,000 she had recovered (i.e. that the overall result of the case should be cost neutral for the appellant). In a judgment given on 24 March 2017, Judge Luba agreed. He said:

“18. As I have already indicated, pleadings against both Defendants incorporate four heads or causes of action. If any one of them does not include a claim for personal injury damages, then it might be arguable that the terms of 44.16 (2)b are met. It seems to me, however, that on a consideration of the pleaded case here, set out in the Statement of Case advanced by the claimant against each of the two defendants, what is alleged is that injury has followed as a consequence of each of the four matters that I have already recounted in this judgment …

  1. It is not a case, for example, in which there has been included a separate claim for some other form of damage or loss arising in consequence of that claim alone. It seems to me in those circumstances, on the fact of these particular cases, that the exceptions in CPR 44.16 on which the defendants would seek to rely if matters came to that point, is not in fact available.”

The respondents appealed Judge Luba’s decision on the basis that he had wrongly granted the appellant the automatic protection of the QOCS regime in respect of claims which were not claims for damages for personal injury.

In a detailed judgment dated 31 July 2018 ([2018] EWHC 2046 (Admin)) Whipple J allowed the respondents’ appeal. She referred to a number of authorities, including the decision of Morris J in Jeffreys v Commissioner of the Metropolis [2017] EWHC 1505 (QB), [2018] 1WLR 3633, a case decided after Judge Luba’s judgment of 24 March 2017 but on this very point. She concluded that, because this was a mixed claim, in that it included claims for damages for matters unconnected to personal injury, as well as a claim for personal injury damages, one of the express exceptions to the QOCS regime was triggered. Accordingly she held that the automatic costs protection arising from the QOCS regime fell away, although she emphasised at [50] and [51] that, even though that protection did not automatically apply, costs in a mixed claim remained a matter for the court to deal with in a fair and flexible fashion.

The appellant was granted permission to appeal to this court. In giving permission, Lewison LJ said, in relation to the underlying principle, that the application of the QOCS regime to mixed claims was one of considerable importance and that “clarity is essential”. However, the financial consequences of this appeal are much less apparent. Ms Darwin, on behalf of the appellant, said in her opening remarks that the appellant faced a bill of £100,000 if she lost the appeal. This figure was not apparent from the papers and the court sought more information from the parties as to what was at stake. Lord Faulks QC produced a post-hearing note which showed that, on the respondents’ figures, the amount was much lower. The appellant’s solicitors responded with not one but two further recasts of the figures, each different, which at least demonstrated that the £100,000 had been over-stated. It is surprising that the parties were not able to agree, even after the hearing, what the appeal was actually worth in monetary terms.

Lord Justice Coulson stated on “access to Justice”:

Both the appellant and the intervener submitted that, if the appeal were dismissed, then not only the appellant but thousands of other claimants with mixed claims would be deprived of the protection of QOCS. I do not agree with the premise of that submission.

The appellant – and more particularly, the intervener – really wanted to achieve the certainty of knowing 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.

If there is a claim for damages in respect of personal injury, then the QOCS regime, set out above, provides the required certainty. Any claimant can make such a claim knowing that he or she will not be the subject of any adverse costs order in an amount higher than the sum (if any) which they recover in the proceedings.

If, on the other hand, the claimant is making claims for damages or other relief which are unrelated to personal injury, then that certainty is not generally achieved. There is no existing statutory provision, no part of the Jackson review, and certainly no part of the CPR, which indicates that the certainty of automatic costs protection, in respect of claims for non-personal injury damages, was intended or required.

Ms Darwin made much of the need to ensure access to justice for victims of personal injury. Of course: that is what the QOCS regime is all about. But in the present case, the appellant was not the victim of personal injury: her claim for personal injury damages was rejected and there was no appeal. The appellant did have a valid (non-personal injury) claim under the DPA and HRA and in tort on which she was successful. Her difficulty was that she had refused the offers of a total of £18,000 and at the end of the trial recovered just £9,000. In other words, the proceedings following the appellant’s rejection of the offer, were a waste of time and money for all parties, having been necessitated only by the appellant’s refusal to accept much more than she eventually recovered. 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.

PIC View

We believe that QOCS should be reviewed and additional heads of claim brought within the protection of the regime. This would provide certainty on access to justice for claimants, especially claimants with limited means. Unfortunately, as stated in the judgement

“it can only be extended to other areas of civil litigation by amendments to the CPR, not by judicial intervention”

Until the rules are changed, you need to advise your clients fully regarding when they do and do not have protection under QOCS.

Reuben Glynn | Managing Director | Partners In Costs Ltd
Email: reuben.glynn@pic.legal

 

06.02.20

 

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