Last year, I wrote a post on this blog discussing a High Court judgment which held that qualified one-way costs shifting (‘QOCS’) protection does not apply automatically in proceedings where a claimant is advancing both a claim for damages for personal injury and a claim other than a claim for damages for personal injury (a ‘mixed claim’). The claimant’s appeal in in Brown v Commissioner of Police of the Metropolis [2019] EWCA Civ 1724 has now been unanimously dismissed by the Court of Appeal.
Ms Brown, a former officer, brought civil proceedings again two defendant chief officers and pleaded four causes of action. The claim essentially arose out of the defendants’ wrongful obtaining and use of private information about her. She claimed damages for personal injury as well as damages for other losses not arising from personal injury. This was properly a ‘mixed claim’. She was awarded a single, global award of £9,000 by the first instance judge, which was less than the first defendant’s Part 36 offer and equal to the second defendant’s.
The question was whether the QOCS regime applied automatically, such that Ms Brown could avoid the enforcement of adverse costs orders made against her. The answer on appeal to the High Court, and then the Court of Appeal, was ‘no’.
By way of reminder, CPR 44.16(2)(b) provides an exception to the QOCS regime, whereby a defendant can enforce a costs order made against a claimant with the permission of the court where ‘a claim is made for the benefit of the claimant other than a claim to which this Section [i.e. the QOCS regime] applies’. The Court of Appeal was tasked with determining the proper interpretation of those emboldened words.
The key points to take from this unanimous judgment are as follows:
- If proceedings in which personal injury damages are claimed ‘also involve claims made by the claimant which are not claims for damages for personal injury (that is to say, claims “other than a claim to which this Section applies”), then the exception at r.44.16(2)(b) will apply’ [31];
- The QOCS regime applies to damages for personal injury and not to other types of claim. Therefore, there is no justification for allowing those other types of claim to attract automatic QOCS protection [32];
- The narrow words of the CPR 44.16(2)(b) exception demonstrate that ‘what the CPR intended was to exempt from the QOCS regime, within the widest possible umbrella of the proceedings as a whole, claims which were not claims for damages for personal injury’ [36];
- If mixed claims ‘did not fall within the r.44.16(2)(b) exception, then it is impossible to see how the exception could ever work, or what its purpose or rationale would be’ [37];
- The reference to a ‘claim’ in CPR 44.16(2)(b) does not mean ‘cause of action’. Indeed, a claim for personal injury damages ‘is not a cause of action at all. A cause of action is, for example, a breach of duty or a claim under a statute. A claim for damages in respect of personal injury is a claim for a particular head of loss arising out of the breach or misconduct of the defendant’ [46];
- QOCS protection will still automatically apply to pure personal injury claims in which damages are sought not only for pain and suffering but also for medical treatment, adapting accommodation, loss of earnings and ‘all other claims consequential upon that personal injury’ [54]. As such, the judgment in Brown does not mean that a claim for personal injury damages is ‘limited to damages for pain and suffering’ [55];
- In other claims, such as road traffic accident claims, the fact that a claimant claims damages for personal injury as well as damages relating to, say, property damage ‘does not mean that the QOCS regime suddenly becomes irrelevant.’ When a judge deals with costs at the conclusion of such a case, ‘the fact that QOCS protection would have been available for the personal injury claim will be the starting point, and possibly the finishing point too, of any exercise of the judge’s discretion on costs’ [57];
- If, unlike Ms Brown’s 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.’ Therefore, it is likely that, in most mixed claims, ‘QOCS protection will – in one way or another – continue to apply’ [57];
- However, is is important that flexibility is preserved and ‘[i]t would be wrong in principle to conclude that all mixed claims require discretion to be exercised in favour of the claimant’ [58]. Each case will turn on its own facts;
- The QOCS regime ‘can only be extended to other areas of civil litigation by amendments to the CPR, not by judicial intervention’ [66].
Coulson LJ said this interpretation of CPR 44.16(2)(b) was ‘sensible and straightforward’ [32]. Whether it ‘produces a logical and fair outcome’ [ibid] will depend on whether you ask a claimant or a defendant.
Since, in a mixed claim, pleading a claim for personal injury damages will no longer allow claims for non-personal injury damages to attract automatic QOCS protection, it may well be that claimant lawyers become more cautious when choosing their intended causes of action and heads of loss.
However, it is worth reminding both claimant and defendant lawyers that, just because mixed claims do not automatically attract QOCS protection, that does not mean that that will be the end of the matter. As Coulson LJ observed, ‘it then becomes a question of the judge’s discretion’ [33]. He seemed keen to promote the exercise of that discretion in claimants’ favour in appropriate cases but, ultimately, conferring a discretion necessitates flexibility and this means that some claimants will face adverse costs orders in mixed claims.