October 18, 2019

Court of Appeal upholds finding that QOCS does not automatically apply to claim with PI element

The Court of Appeal has upheld a High Court decision which found that qualified one-way costs shifting (QOCS) does not automatically apply to a 'mixed claim' concerning misuse of data, which also included a personal injury (PI) element.

The decision is beneficial for those parties defending mixed claims, and offers much needed clarification on the application of the exception under CPR 44.16(2).

Background

This was an appeal against the decision of Mrs Justice Whipple in relation to particular costs elements of an action brought by Andrea Brown, a former police officer, against the Commissioner of Police of the Metropolis ("the first defendant") and the Chief Constable of Greater Manchester Police ("the second defendant").

At first instance, the claimant brought various claims for damages under the Data Protection Act 1998 ("DPA") and Human Rights Act 1998 (HRA), 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.

As part of those causes of action, the Claimant advanced a claim for personal injury, alleging she had suffered depression. HHJ Luba QC held that she had not suffered any personal injury.

The claimant received a single global award of £9,000 in general (compensatory) damages to reflect those causes of action on which she had succeeded. On the basis on a two-thirds/one-third apportionment of the damages between the Met and GMP, the respective awards against each Defendant were less than the Part 36 Offer made by the Met on 26 February 2016, and equal to the Part 36 offer made by the GMP on 2 May 2016.

At a subsequent hearing on costs, HHJ Luba QC held that the claimant was entitled to QOCS protection, and made costs orders against the defendants.  The defendants appealed the decision to grant QOCS protection.

Mrs Justice Whipple granted the defendants' appeal, applying the guidance in Jeffreys and Siddiqui. She held that this was a mixed claim. As 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 (44.16(2)) was triggered.  The automatic costs protection arising from the QOCS regime fell away, though this was a matter for the court to deal with in exercising discretion.

Appeal

Granting permission to appeal, Lewison LJ stated that "clarity is essential", and the Equality and Human Rights Commission (EHRC) were also granted permission to intervene.

The claimant argued that Whipple J has erred in her interpretation of CPR 44.14(1)(a) and (b) and advanced an appeal on the following grounds:

  • Her interpretation was contrary to the ordinary and natural meaning of the words used by the Rule Committee.
  • Equating the word 'proceedings' with 'a claim' was incorrect
  • Interpreting 'proceedings which include a claim for damages for personal injuries' to mean 'claims for damages for personal injuries' was incorrect.
  • The interpretation undermined the purpose of the QOCS provisions and risked rendering them redundant, by excluded a wide range of claims from protection
  • The interpretation impeded access to justice, preventing a civil justice system which is accessible, fair and efficient.

Outcome

Lord Justice Coulson, with the agreement of Lord Justice Richards and McCombe, dismissed the appeal.  His judgment addressed the wide ranging submissions on the application on CPR 44.16(2):

  • Interpretation - It was clear that CPR 44.16(2) applied to any proceedings where a claim had been made for personal injury as well as something else (a mixed claim). Therefore, for proceedings involving mixed claims, the exception at CPR 44.16(2)(b) will apply.  The Court considered this to be "the sensible and straightforward interpretation" of the rule with a "logical and fair outcome".
  • 'Proceedings' and 'claim' - The claimant had failed to offer an alternative interpretation to that offered by Mrs Justice Whipple. The EHRC suggested that "if one of the claims made in the proceedings was a claim for damage for personal injury then, because this was protected by 44.3, none of the claims could be excepted by 44.16".  This has been rejected in Jeffreys, and again here.
  • 'Claim' to be read as 'cause of action' – The claimant submitted that if damages for personal injury were pleaded as a consequence of each pleaded cause of action, the exception would not apply and automatic QOCS protection would remain.The Court disagreed:
    • A claim for damages for personal injury is not a cause of action, it is a particular head of loss.
    • The rules do not refer to a cause of action.
    • Whipple J was correct in holding that it was not necessary to delve into whether there were separate causes of action.
    • On the facts of this particular case, this interpretation worked against the claimant in any event as the successful actions stood alone.
  • Effect on claims for personal injury - In response to the claimant's submissions on the effect of Whipple J's decision on so called 'ordinary' claims for personal injury, the starting point was that QOCS protection only applies to claims for damages in respect of personal injuries.  
  • Access to justice – The Court found that costs disputes are "routinely decided through the exercise of the judge's discretion".  The certainty sought by the claimant and intervener on costs for claims involving PI - no matter how insignificant that claim to the proceedings – is "unusual". Coulson LJ found that the position on costs for mixed claims was "accessible, fair and efficient."
  • Deterrent effect – The Court agreed that a claimant may be more likely to bring a claim knowing there will be no adverse costs consequences. However, it could not sensibly be described as a deterrent to those claimants who knew that costs will be a matter for the judge at the end of a case.

What we can learn?

  • This decision should be welcomed by all parties as providing clear and consistent guidance on the issue of mixed claims. Defendants, such as local authorities, who are routinely subject to such claims, are now afforded the certainty of this decision. Mrs Justice Whipple had previously stated that allowing mixed claims automatic costs protection could result in claims being 'dressed up' with a PI element in order to gain the benefit of QOCS. Lord Justice Coulson also raised this concern, stating that this would be "wrong in principle" and "would lead to abuse".
  • On the specifics of mixed claims, Lord Justice Coulson acknowledged that damage to property (such as a vehicle), may feature in a claim for damages in respect of personal injury. That "does not mean that the QOCS regime suddenly become irrelevant". That QOCS protection was available for a PI claim should be the starting point of the judge's discretion.
  • If a claim could be best described as a personal injury claim, and notwithstanding "exceptional features" of the non-PI claims, then Lord Justice Coulson considered it likely that QOCS protection would continue to apply. That protection would be offered at the discretion of the Court, and not as an automatic right.
  • On the issue of any chilling effect, and how this outcome would have on PI litigation generally, Lord Justice Coulson noted the "absence of any cases… in which this point has arisen in an ordinary personal injury claim [which] only confirms my belief that costs in such cases have generally been properly addressed."

Lucy Gallagher, Associate at Clyde & Co acted for the Chief Constable of Greater Manchester Police