QOCS: WHAT IS A CLAIM FOR “DAMAGES FOR PERSONAL INJURIES”? JUDGMENT HERE – APPEAL PENDING
NB THIS JUDGMENT WAS OVERTURNED ON APPEAL. SEE THE POST HERE.
I am grateful to barrister Claire Darwin for sending me a copy of the judgment of His Honour Judge Luba in Brown -v- The Commissioner of Police for the Metropolis ( Costs Brown Transcript). Claire tells me that the defendants’ appeal against this judgment is to be held early next month.
The claimants brought an action against the defendant police forces. The actions were for (i) breach of the Data Protection Act; (ii) breach of the Human Rights Act; (iii) tortious wrongdoing contrary to the Prohibition on the Misuse of Personal Information; (iv) Misfeasance in Public Office.
The claimant succeeded on the first two arguments, the judge found for the claimant in relation to the third. The judge found that the tort of Misfeasance in Public Office had not been made out.
DID QOCS APPLY?
The defendant indicated that they wished to argue that the claimant could be liable to pay costs. The question was whether QOCS applied.
The judge reviewed the case and then considered the statutory provisions:
10. Against that background, I turn to look at the provisions of CPR Part 44, Section The governing provision is Part 44.13(1). That provides that “This section [of CPR 44] applies to proceedings which include a claim for damages (a) for personal injuries…” The structure of the second section of Part 44 is that Rule 44.14 then deals with the effect of Qualified One-Way Costs Shifting, ‘QOCS’ and Rules 44.15 and 44.16 are concerned with exceptions.
11. CPR 44.15 provides for exceptions which arise without judicial intervention, and 44.16 provides for exceptions which require the intervention of the Court by the granting of permission.
In these cases it is said by Darwin that the entirety of the actions brought against both Defendant(J are encapsulated within the meaning of the phrase “A claim for damages…for personal injuries”, as used in CPR 44.13. Accordingly, subject only to the application or availability of any exception, the provisions in the second section of Part 44 apply.
On behalf of both Defendants, Mr. Clemens does not demur from that general proposition. However, it is his case that in these proceedings the Defendants are entitled to invite the Court to grant permission for a different consequence to follow. That is because Part 44.16(2) provides that “Orders for costs made against a Claimant may be enforced up to the full extent of such orders with the permission of the Court and to the extent rhat it considers just, where…(b) a claim is made for the benefit of the Claimant other than a claim to which this section applies”.
14, As is plain from that wording, the structure of CPR 44.16 is such that first there is a preliminary pre-condition, namely that one of the two sub-paragraphs (a) or (b) must be fulfilled. If that pre-condition is met, then the Court may make an order modifying the normal consequences of the QOCS regime where it “considers just”.
The judge considered the argument that the claim included a claim that was not a claim for personal injuries. The judge rejected the defendants’ arguments. The judge found that QOCS applied to the entire case which was a claim for damages for personal injuries.
However, I have to ask myself, however, whether in these a claim has been made for the benefit of the Claimant other than a claim to which this section As I have already indicated, pleadings against both Defendants incorporate four heads or causes of action. If any one of them does not include a claim for personal injury damages, then it might be arguable that the terms of 44.16(2)(b) arc met. It seems to me, however, that on a consideration of the pleaded case here, set out in the Statement of Case advanced by the Claimant against each of the two Defendants, what is alleged is that injury has followed as a consequence of each of the four matters that I have already recounted in this Judgment. That much is plain from the language in Paragraph 37 of the Particulars of Claim in the one case, and Paragraphs 49 and 50 of the Particulars of Claim in the other.
It is not a case, for example, in which there has been included a separate claim for some other form of damage or loss arising in consequence of that claim It seems to me in those circumstances, on the facts of these particular cases, that the exceptions in CPR 44.16 on which the Defendants would seek to rely if matters came to that point, is not in fact available.
It is sufficient for me simply to declare that should the position be reached on the question of costs that the Claimant is exposed to liability for either of the Defendants’ costs, then she will have the benefit of Qualified One-Way Costs Shifting under Part 44 Section II, and she shall have the full benefit, because the pre-condition to any exception for which the Court’s permission is required, is not satisfied.