Fantastic exceptions to QOCS and where to find them - part 2

Court of Appeal ratifies High Court in case where QOCS exception applies to a claimant

Andrea Brown v The Commissioner of Police of the Metropolis & the Chief Constable of the Greater Manchester Police & the Equality and Human Rights Commission (Intervener)[2019] EWCA Civ 1724

Executive summary

In a very significant judgment for all those involved in ‘mixed’ claims and in particular those against police authorities, the Court of Appeal has dismissed an appeal by a claimant against a High Court decision which found that her claim was one to which the exception to the qualified one way costs shifting (“QOCS”) rule applied. In so doing, the costs orders in favour of the two defendant police forces, following the claimant’s failure to beat their respective Part 36 offers put forward before the trial, were enforceable.

In detail

We wrote previously about this case following the High Court decision back in July 2018. The essence of the appeal to the Court of Appeal was whether the automatic costs protection provided to losing claimants via the QOCS rules in personal injury cases also applied to claimants whose claims were ‘mixed’, i.e. claims which included a claim for damages for personal injury but also for non-personal injury damages and other relief. 

The claimant/appellant was a Detective Constable with the MPS and was absent from work due to work-related stress when she went on holiday in December 2011. This was later investigated. As part of that misconduct investigation, DI Sarah Rees requested information from the Joint Border Operations Centre (“JBOC”) run by Greater Manchester Police (“GMP”) to obtain proof that she had travelled on holiday whilst on sick leave. DI Rees had already been told that the claimant had been on holiday by her line manager, DS Wickens. DI Rees and DS Wickens also requested information from Virgin Atlantic about flights the claimant had taken whilst on sick leave. Following a misconduct meeting no action was taken against the claimant.

The claimant brought a separate but related claim against GMP for breach of the Data Protection Act 1998, breach of the Human Rights Act 1998, misuse of private information and misfeasance in public office. Both claims were heard in July 2016. Liability was admitted in relation to the claims for breach of the HRA and DPA. Part 36 offers were made and at trial, the claim for misfeasance in public office against both defendants was dismissed but the claimant succeeded in her claim for misuse of private information and was awarded a global sum of £9,000. The MPS was ordered to pay £6,000 and GMP £3,000. The claim for aggravated damages was dismissed and the claimant failed to beat either defendant’s Part 36 offer.

The claimant was ordered to pay the defendants’ costs from the expiry of the period within which she could have accepted the offers (per the provisions relating to payment of costs under Part 36), with an enhanced rate of interest of 5%. The defendants had been ordered to pay 70% of the claimant’s costs prior to their respective Part 36 offers. In respect of the enforcement of the costs order, the judge ruled that this was a personal injury claim and was subject to QOCS protection which meant that the parties were only able to enforce their costs order up to the value of the damages which were awarded. This was successfully appealed in the High Court, as can be seen from our update referred to above.

To add a further dimension to the hearing in the Court of Appeal, the Equality and Human Rights Commission successfully applied to intervene in the case (as they had in the High Court) and provided submissions from the Police Action Lawyers’ Group who challenged the High Court’s approach to QOCS and its applicability to claims against the police. They submitted that the uncertainty surrounding QOCS and the High Court’s interpretation in claims against the police has led to confusion and a reduction in claims being brought as claimants are uncertain as to their costs liability in the event that they are unsuccessful at trial. 

The Court of Appeal’s decision

The appeal was dismissed in a judgment dated 18 October 2019 and permission to appeal to the Supreme Court was refused, although the claimant still has 28 days from the date of the judgment to apply to the Supreme Court directly for permission to appeal.

The panel of three Lord Justices (Coulson LJ, McCombe LJ and David Richards LJ) agreed that the claim was a mixed claim and came within the exception to the QOCS regime, so the High Court decision was upheld whilst the arguments made by the Equality and Human Rights Commission were dismissed. The claimant will not receive the damages awarded at trial as these were offset against costs owed, whilst the appeal costs of both defendant police forces were also awarded.

Conclusions and implications

This claim is now the leading authority on the application of QOCS to mixed claims and there are a number of practical consequences. The majority of claims brought against the police are mixed claims for which ATE insurance is no longer available. This result will ensure that claimant solicitors have to advise clients, who are not in receipt of public funding, that they may be subject to an adverse costs order should they lose a mixed claim at trial or fail to beat a defendant’s Part 36 offer. They are also at risk of an enforceable costs order if they are only partially successful at trial.

It is open to a defendant to settle the personal injury element of a claim and to proceed on the remaining causes of action in the knowledge that the claimant is at risk of an adverse costs order. This should lead to a reduction in claims being brought against the police and a drop in spurious allegations of discrimination, misfeasance and malicious prosecution which are bolted on to assault claims.

This is an important decision in a case that will be of interest to police lawyers nationally. It also provides confirmation that the approach taken by Morris J in Jeffreys v The Commissioner of Police of the Metropolis [2017] EWHC 1505 (QB) is correct and now takes on even greater emphasis given that there are no plans for the Ministry of Justice to extend the QOCS regime to actions against the police. See paragraphs 102 and 160 of the Post-Implementation Review of Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, February 2019.

Weightmans acted for the Commissioner of Police of the Metropolis, also representing the Commissioner in Jeffreys v Commissioner of Police of the Metropolis [2017] EWHC 1505 (QB), [2018] 1 WLR 3633.

If you have any questions or would like to know more about our update, please contact Daniel Rutherford, Principal Associate, on 020 7822 1900, or daniel.rutherford@weightmans.com, or Martin Forshaw, Partner, on 0151 242 7935, or martin.forshaw@weightmans.com.

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