Fantastic exceptions to QOCS and where to find them
The appellant police forces successfully appealed the trial judge’s ruling on costs that qualified one-way costs shifting applied automatically.
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)  EWHC 2046 (Admin)
The appellant police forces successfully appealed the trial judge’s ruling on costs that qualified one-way costs shifting (“QOCS”) applied, automatically, to protect the claimant from any adverse costs order which may be made in the police’s favour following her failure to beat their respective Part 36 offers. Whipple J ruled that the claimant’s case came within the exception to QOCS in CPR 44.16 (2) (b) and that the trial judge did have the discretion to permit enforcement of the defendant’s costs order; to the extent that he considered just. HHJ Luba QC will now be asked to exercise his discretion at a hearing on 6 September 2018.
This was an appeal against a judgment given by HHJ Luba QC in the Central London County Court on 24 March 2017 in relation to one aspect of the costs of an action brought by Ms Andrea Brown, against two defendants, the Commissioner of Police of the Metropolis and the Chief Constable of Greater Manchester Police. Judgment was handed down on 31 July 2018.
The claimant was a serving officer in the Metropolitan Police Service (“MPS”) until November 2013. In December 2011, while employed but on sick leave, she travelled to Barbados with her daughter without notifying her line manager. The MPS submitted a request for information to the National Border Targeting Centre which was managed by Greater Manchester Police (“GMP”). GMP responded by email giving the MPS information about the claimant’s trip to and from Barbados, attaching a copy of her passport and a print-out containing other information about her recent travel arrangements and passport details. The MPS also approached Virgin Atlantic and asked for information about the details of the flight and booking by the claimant. They were provided with such information by Virgin Atlantic.
That information was used against the claimant in a disciplinary process which culminated in a finding that she had a case to answer but that a sufficient sanction would be “informal management action”.
The claimant sued both forces. She claimed that they had misused facilities at their disposal for gathering data and information. The claimant pursued four causes of action: (1) breaches of the Data Protection Act 1998 (“DPA”), (2) breaches of the Human Rights Act 1998 (“HRA”), (3) misfeasance in public office and (4) the tort of misuse of private information. The police conceded (1) and (2). The claimant lost on (3) and won on (4).
The claimant advanced a claim that she had sustained “damage” for the purposes of section 13 (1) of the DPA, in the form of depression. The trial judge rejected that claim on the ground that she had not suffered personal injury in the form of any recognised psychiatric injury, and that in any event the breaches of the DPA did not cause or materially contribute to any such injury as she might have been able to establish. The judge did accept that she had suffered distress, sufficient to warrant an award of damages under section 13 (2) DPA.
The judge also rejected her claim for aggravated or exemplary damages. He made a single global award of general damages to reflect the three causes of action on which she had succeeded. He awarded her £9,000, apportioned two-thirds/one-third between the MPS (£6,000) and GMP (£3,000) respectively. The award was less than a Part 36 offer made by the MPS and equalled a part 36 offer made by GMP.
It was against this background, the threat of a substantial costs order against the claimant, that the issue of costs came before the trial judge. He ruled that the claimant was entitled to QOCS protection. He later ordered that the MPS and GMP pay 70% of the claimant’s costs up to the date of their respective Part 36 offers; thereafter, he ordered the claimant to pay the costs of the MPS and GMP.
Both police forces were unable to enforce the order due to the finding that QOCS applied. They appealed this finding and argued that the judge erred in law in construing CPR Part 44 so as to confer “automatic” QOCS protection on the claimant. The appellants argued that the ‘mixed’ nature of the claimant’s claim meant that QOCS protection was not automatic, but was subject to the judge’s discretion.
The claimant argued that the trial judge was correct in his analysis and that her claim was a claim for personal injury which should attract QOCS protection in its entirety. This was irrespective of the fact that the trial judge had dismissed the claimant’s personal injury claim. The personal injury claim was pleaded and could not be severed as it pervaded the remaining causes of action.
It should be noted that HHJ Luba QC gave his judgment before Morris J’s ruling in Jeffreys v Commissioner of the Metropolis  EWHC 1505 (QB) and before Foskett J in Siddiqui v Chancellor, Masters and Scholars of the University of Oxford  EWHC 536 (QB).
The claimant was supported by the Equality and Human Rights Commission (“EHRC”) who intervened. They argued that QOCS should be broadly construed to promote access to justice and to achieve the aims of the CPR and of the QOCS regime.
The EHRC’s position was that QOCS should provide certainty for claimants making personal injury claims that they will not be subject to adverse costs orders, even if ultimately unsuccessful, subject only to narrow exceptions. The EHRC argued that Morris J, in upholding the judgment of HHJ Freeland QC at first instance, was wrong in Jeffreys and the effect of his ruling had been to introduce uncertainty, which was having a chilling effect across a broad swathe of personal injury claims. A witness statement was served by a senior lawyer at the EHRC setting out the EHRC’s concerns about access to justice if Jeffreys was upheld. She had obtained data from the Police Action Lawyers Group (“PALG”) which suggested that a high proportion of cases handled by lawyers within that group involved claims for personal injuries alongside other claims; mixed claims. They provided examples of cases in human rights and other areas of law, where claimants had been deterred following Jeffreys.
Whipple J allowed the appeal and agreed with the analyses of Morris J and Foskett J. She found that the claimant had advanced a mixed claim. Whilst mixed claims are within the scope of QOCS, by virtue of the CPR 44.13 (1) there is a mechanism in CPR 44.16 (2) (b) to deal with claims which do not fit squarely within the QOCS regime. This mechanism allows the trial judge to decide at the end of the case if and to what extent it is just to permit enforcement of a defendant’s costs order.
In the words of Whipple J:-
“In this way, the infinite variety of mixed claims can be dealt with fairly and flexibly, according to the justice of the case. Read in this way, the provision is entirely consistent with the overriding objective. The key is in the definition of a “personal injury” claim, because it is only a personal injury claim which carries automatic entitlement to QOCS protection.”
In paragraph 52, the judge set out the simple question to be asked as follows:
- The question to be asked in any given case seems to me to be this: in the proceedings, is the claimant claiming anything other than damages for personal injuries?
- If the answer is no, then QOCS protection applies automatically (subject of course to one of the other exceptions applying, where the case is struck out or dishonesty is found).
- If the answer is yes, then the case is subject to the court’s discretion under CPR 44.16(2)(b).
Whipple J accepted that since the availability of public funding for personal injury and other cases had been reduced, many claimants had found it harder to access justice. But she made plain that the QOCS regime was not intended to address wider issues of access to justice and to do so would be to go far beyond its intended purpose.
For claimants involved in mixed claims it was acknowledged that there is a degree of uncertainty as to the extent that they will benefit from QOCS protection as this will not be determined at the outset but at the end of a trial when the issue of the enforcement of any costs order is considered. However, the extension of QOCS to cover mixed claims was not the answer to guarding against this uncertainty.
The judgment of Whipple J is essential reading for any practitioner advising either a claimant or defendant in respect of a mixed claim. Claimants proceeding with a mixed claim, who are not in receipt of public funding, will need to be advised at the outset of their potential costs liability in the event that they are either unsuccessful at trial or fail to beat a defendant’s Part 36 offer.
Given the endorsement of the judgment in Jeffreys by both Foskett J and Whipple J we now have clarity that should inform how both claimants and defendants manage the risks to their respective clients.
Partial successes at trial now take on greater significance. Unmeritorious claims for aggravated and, in particular, exemplary damages need to be treated with caution. If claimants persist with fanciful claims, they risk enforceable adverse costs orders wiping out the value of any successful components. Let the claimant beware!
Daniel Rutherford, Associate and Martin Forshaw, Partner acted for the Commissioner of Police of the Metropolis. They also represented the Commissioner in Jeffreys v Commissioner of Police of the Metropolis  EWHC 1505 (QB),  1 WLR 3633.
If you have any questions or would like a copy of the judgment, please contact Daniel Rutherford, Associate, on 0207 822 7172 or email email@example.com.