FULL QOCS PROTECTION DOES NOT EXTEND TO “MIXED CLAIMS”: THE COURT HAS A DISCRETION: JUDGMENT ON APPEAL

In  The Commissioner of Police of the Metropolis v Brown [2018] EWHC 2046 (Admin) Mrs Justice Whipple held that a claim against the police for misuse of data, misfeasance in public office and misuse of private information, did not give rise to the automatic protection of QOCS.  The judgment also contains some important observations in relation to “mixed claims” in the context of personal injury, for instance when a claim for damage to a car is included.

In summary, because Ms Brown advanced claims within the proceedings other than a claim for damages for personal injury, her case does come within the exception at CPR 44.16(2)(b). In consequence, the Judge does have a discretion to permit enforcement of the defendant’s costs order, to the extent he considers it just”

THE CASE

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 JUDGMENT AT FIRST INSTANCE

HH Judge Luba found that the claims included a claim for personal injury. The claimant, therefore, had the protection of QOCS. The judgement was looked in an earlier post.

THE FINDINGS ON APPEAL

On appeal Mrs Justice Whipple allowed the defendant’s appeal.
    1. CPR 44.13 extends to any proceedings which “include” a claim for damages for personal injuries. I would see this as a broad gateway, through which any proceedings which include a claim for damages for PI will pass. There are limits, as Vos LJ identified in Wagenaar. In that case, a third party claim for indemnity or contribution was held to be outside the scope of CPR 44.13 (and therefore outside QOCS completely). But that case also confirmed that an ordinary case, where a claimant seeks damages consequent on a road traffic accident (“RTA”), would be within scope, even if those proceedings included a claim for compensation for damage to the car as well as damages for personal injuries.
    2. Wagenaar is a case about CPR 44.13 and not CPR 44.16, which is in point here. It is therefore of limited assistance in resolving this case.
    3. Coming to CPR 44.16(2), the first issue is how to construe the words “a claim … other than a claim to which this Section applies”. This wording is problematic, because “this Section applies”, by operation of CPR 44.13(1), to “proceedings” not to “claims”. But I agree with Morris J that the solution is obvious: CPR 44.16(2)(b) refers back to CPR 44.13(1), and thus to “proceedings which include a claim other than a claim for damages for personal injury”.
    4. Thus, CPR 44.16(2) applies in any proceedings where a claim has been made for damages for personal injuries as well as for something else (ie, as well as a claim other than a claim for damages for personal injury). This is a “mixed claim”.
    5. Once that point is resolved, the construction of CPR 44.16(2)(b) becomes clear. Mixed claims are within the scope of QOCS, by virtue of CPR 44.13(1). But CPR 44.16(2)(b) provides a mechanism to deal with mixed claims. The mechanism is quite simply to leave it to the Court at the end of the case to decide whether, and if so to what extent, it is just to permit enforcement of a defendant’s costs order.
    6. 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.
    7. 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. Personal injury claims are claims for damages in respect of personal injuries (see the definition at CPR 2.3). 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?
i. 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).
ii. If the answer is yes, then the case is subject to the court’s discretion under CPR 44.16(2)(b).
    1. This is a simple question to which, in most cases, I believe that there should be a simple answer. There may of course be cases where the position is more complex; but this is not such a case. In answering that central question, I am not persuaded that it is necessary to delve into whether there are separate causes of action or remedies claimed (in this case, the answer, if the question was put that way, would be that there were both other causes of action and other remedies being claimed). But mixed cases such as this one often present various inter-connected causes of action and claims for remedies. It is in my judgment unnecessary to try to dissect them out into distinct causes of action, each with different component parts (which may or may not include personal injury) and remedies. That is not what is required by CPR 44.16(2)(b).
    2. On my proposed approach, the example given by Vos LJ in Wagenaar can be resolved. A standard PI claim for damages for personal injury and damage to property is subject, at least in theory, to the discretion in CPR 44.16(2)(b) because the claimant is claiming for something beyond damages for personal injuries. In an ordinary claim arising out of an RTA, it might be thought unlikely that a Court would consider it just to remove QOCS protection, simply because the injured claimant also sought compensation for damage to their car. But the discretion is there, and in an unusual RTA, for example where the personal injury claim is modest but the main issue in the case relates to damage to the car, the Court might consider it just to remove QOCS protection.
    3. In summary, I agree with the approach taken by Morris J and Foskett J, and with the reasons they each give for reaching their conclusions.

RESPONSE TO MS BROWN AND EHRC

    1. I have considered the grounds advanced by Ms Darwin on behalf of Ms Brown. I am unable to reconcile them with the words, scheme or purpose of the QOCS regime. For reasons set out above, I reject Ms Darwin’s submissions that the Judge was right for the reasons he gave. His reasons were, in essence, that Ms Brown’s PI claim was not severable from the other claims she was advancing. But, like Morris J, I do not consider severability to be an issue; an inseverable claim for damages for personal injury is a mixed claim of the sort caught by CPR 44.16(2)(b).
    2. The consequence of Ms Darwin’s two wider arguments is that QOCS would have automatic application to any proceedings which include a personal injury claim, or even, on her second alternative, to any proceedings related to proceedings in which a personal injury claim is advanced. This applies QOCS protection very widely. It would mean, at its most basic, that mixed claims would have automatic protection. That would render CPR 44.16(2) entirely redundant, and so it cannot be right. Further, such an outcome would not be just (and would not conform with the overriding objective), because it would permit claims to be dressed up as PI claims (precisely in the manner identified by Foskett J) in order to obtain the benefit of QOCS protection. The answer to this latter point cannot be to invite defendants to apply to strike out obviously abusive claims – which would lead to more cost of litigation and greater use of court time. The answer must be that the provisions are simply not intended to be open to abuse in so obvious a manner; they are intended to confer automatic QOCS protection only on claims for damages for personal injury (the goal at which the Jackson report was aiming in making the recommendation for QOCS to be implemented), leaving mixed claims at the discretion of the Court.
    3. I have also considered the points made by the EHRC. I accept that the purpose of the QOCS regime is to secure access to those who are bringing claims for damages for personal injury. But I reject Ms Lieven’s proposition that a claim for personal injury means any proceedings which include a claim for personal injury: that is not what CPR 44.13 read with CPR 2.3 says. The examples of cases where access to justice is said to have been inhibited, set out in Ms Collier’s witness statement, are all good examples of mixed cases. I make two points.
    4. First, I accept that since the availability of public funding for personal injury and other cases has been reduced, many claimants find it harder to access justice. That will be for a number of reasons. One such is the deterrent of being potentially liable for an adverse costs order (noting that claimants with public funding are effectively protected from enforcement of a defendant’s costs order). But the QOCS regime was not intended to address wider issues of access to justice. It was intended to address a specific issue which arose in relation to claims for damages for personal injury, where claimants were forced to take out ATE insurance to protect themselves against adverse costs orders, and where the premiums for that insurance served to increase the costs of personal injury litigation. I do not believe the QOCS regime can or should be construed in the way suggested by EHRC to promote access to justice. That would be to go far beyond its intended purpose.
    5. Secondly, I also accept that for claimants involved in the sort of mixed claims described by Ms Collier (and of which this case is an exemplar), the position is imperfect because those claimants do not have certainty of QOCS protection at the outset; they are subject to the Court’s discretion on costs at the end of the day. But there are many, many personal injury claims which are not mixed claims and where no such unwelcome uncertainty arises. Many clinical negligence cases, claims arising out of accidents at work, RTAs, slips and trips and such like, will be claims for damages for personal injury only. In some of those cases, the claim will in fact arise under the Fatal Accidents Act 1976 or the Law Reform (Miscellaneous Provisions) Act 1934, both of which are expressly included in the scope of CPR 44.13(1) and neither of which, on my analysis, comes within the exception at CPR 44.16(2). These are ordinary PI cases. It is in this area that the problem addressed by Jackson LJ arose most acutely and where the pressing need for QOCS protection was identified. It is no surprise that mixed cases, which are inherently more complex, are not automatically subject to QOCS protection.

CONCLUSION

  1. This appeal is allowed.
  2. In summary, because Ms Brown advanced claims within the proceedings other than a claim for damages for personal injury, her case does come within the exception at CPR 44.16(2)(b). In consequence, the Judge does have a discretion to permit enforcement of the defendant’s costs order, to the extent he considers it just. I understand that a hearing is fixed before the Judge in September 2018 at which the Judge will consider whether it is appropriate, in light of this Judgment, to exercise his discretion under CPR 44.16(2)(b).