Jeffreys v Commissioner of Police for the Metropolis
The court may permit an order for costs against a claimant be enforced to the extent that it is considered just, if the claim is one excepted from the…
High Court (Morris J)
8 May 2017
The court may permit an order for costs against a claimant be enforced to the extent that it is considered just, if the claim is one excepted from the protection afforded by qualified one way costs shifting (‘QOCS’). A claim will be excepted from QOCS protection if it contains some other type of claim not ordinarily afforded protection by the QOCS regime.
At trial, the claimant claimed substantial damages for false imprisonment, malicious prosecution, misfeasance, assault and included a claim for personal injuries. The claims were dismissed and a costs hearing was ordered.
At the costs hearing, the claimant sought protection from any enforcement of costs because the claim contained a personal injury claim and so was protected by QOCS pursuant to CPR 44.13. Accordingly, it was the claimant’s submission that the police were not entitled to enforce any costs award.
The Commissioner argued that he was entitled to enforce any costs award because of the exception set out in CPR 44.16(2)(b). CPR 44.16(2)(b) states:
(2) Orders for costs made against the claimant may be enforced up to the full extent of such orders with the permission of the court, and to the extent that it considers just, where –
(b) a claim is made for the benefit of the claimant other than a claim to which this Section [QOCS] applies.
The judge at first instance, HHJ Freeland QC, could see no good reason why it was not just to invoke the 44.16(2)(b) exception and so permitted the police to enforce their costs.
The claimant appealed on the ground that the judge did not have discretion to apply the exception because the actions of the police offers were consequential on the claim for personal injuries and, as a result, there is no divisibility or severability from the other, non-personal injury claims.
The court dismissed the appeal, applying the exception and affirming the decision of the judge of first instance. The judge had been entitled to exercise his discretion to make an order he considered just.
The wording of the exception is not clear: “…other than a claim to which this Section applies” could be read to mean a claim that does not include personal injury (or another of the claims protected by CPR 44.13(1)). However, if that was the correct interpretation then it would not apply in any situation; it is not possible to have an exception without a rule to which to apply it.
The sensible approach is to substitute the word ‘proceedings’ for ‘claim’. That is consistent with the ‘Costs and Funding following the Civil Justice Reforms: Questions & Answers’ accompaniment to the 2017 White Book, confirming the exception is intended to cover claims where the claim is only partially a personal injury claim (as was the case here).
Following the court’s interpretation of the exception, the court went on to consider whether the exception would apply to this claim. Morris J did not consider that the divisibility of the claim into personal injury and non-personal injury was relevant to the application of the exception. Should divisibility of the heads of claim be relevant then it could lead to potentially absurd outcomes whereby a claimant receives full QOCS protection even though the personal injury element of the claim is very minor or ancillary to the claim – for example, a tenant who claims against their landlord for loss of enjoyment of the property arising from damp but the damp also exacerbates their asthma.
The wording of the exception is far from clear. The divisional court’s interpretation of the exception is consistent with the limited guidance that is available and provides welcome assistance. But for the exception applying as now directed, the police and other public bodies facing a wide range of litigated challenges would find themselves carrying significant financial outlays through the simple inclusion in multi-faceted claims of a claim for personal injury.