QOCS IN “MIXED “CASES: THE COURT OF APPEAL SPEAKS

In the judgment today in Brown v Commissioner of Police of the Metropolis & Anor [2019] EWCA Civ 1724 the Court of Appeal considered the issue of QOCS in “mixed cases”.  The judgment requires careful reading. Generally speaking all personal injury litigants have QOCS protection and “personal injury” is given a wide definition. The situation in relation to “mixed” cases is far more nuanced.

“I consider it likely that, in most mixed claims of the type that I have described, QOCS protection will – in one way or another – continue to apply^[4]. It therefore follows that, as already advertised at paragraphs 16 and 17 above, to the extent that paragraph 12.6 of Practice Direction 44 suggests a different approach, I consider it to be wrong. It needs to be amended as soon as possible.”

THE CASE

The claimant brought an action against the defendant police force.  The claim was put in a number of ways

She brought claims for damages under the Data Protection Act 1998 (“DPA”) and the Human Rights Act 1998 (“HRA”), and for breach of contract, misfeasance in public office, and the misuse of private information. The respondents admitted liability under the DPA and the HRA. The claim for damages for breach of contract was not pursued. The claims for damages for misfeasance and misuse of private information went to trial. The claimant lost on the former but won on the latter.  The trial judge rejected the claimant’s claim for personal injury damages arising out of the defendant’s conduct.

The claimant, comprehensively, failed to beat the defendant’s Part 36 offer. The issue then arose whether the claimant was entitled to QOCS protection in relation to liability.   The claimant argued that her claim included a claim for damages for personal injury and had QOCS protection.

The trial judge found that the claimant had QOCS protection.  The defendant appealed and that appeal was allowed ([2018] EWHC 2046 (Admin)).

THE CLAIMANT’S UNSUCCESSFUL APPEAL TO THE COURT OF APPEAL

The Court of Appeal rejected the claimant’s appeal. However that judgment is highly nuanced in some respects. There was a detailed review of the QOCS regime and the pre-existing decisions.

Lord Justice Coulson gave one judgment of the court.

5. The Exception at CPR 44.16(2)(b)

5.1 The Proper Interpretation

1. 1. What is the proper interpretation of the words “other than a claim to which this Section applies”? It seems to me quite clear. “This Section” is the Section of the CPR setting out the QOCS regime. Rule 44.13(1) identifies the three types of claim which are covered by that regime: they are claims for damages for personal injury. Thus, if the proceedings also involve claims made by the claimant which are not claims for damages for personal injury (that is to say, claims “other than a claim to which this Section applies”), then the exception at r.44.16(2)(b) will apply.

   2. I consider that this is the sensible and straightforward interpretation of the rule. It also produces a logical and fair outcome. The QOCS regime only applies to claims for damages for personal injury. It does not apply to other types of claim.^[2] There is therefore no justification for allowing claims which are not claims for damages for personal injury (such as, for example, the data protection or police misconduct claims which were successful in the present case) to attract automatic QOCS protection. It would be equally wrong to allow claimants with a mixed claim to use the fact that their claims includes a claim for damages for personal injury to gain automatic costs protection in respect of their claims for non-personal injury damages.

   3. In my view, the exception at r.44.16(2)(b) was designed to deal with the situation where a claim for damages for personal injury was only one of the claims being made in the proceedings. In those circumstances, the automatic nature of the QOCS protection falls away. But of course, that is not the end of the matter: it then becomes a question of the judge’s discretion. I refer to that issue again in Section 5.4 below.

5.2 The ‘Literal’ Interpretation

1. 1. On behalf of the appellant, Ms Darwin’s skeleton argument complained that the approach of Morris, Foskett and Whipple JJ, in the cases noted above, was flawed because it equated “proceedings” in r.44.13(1) with “a claim” at r.44.16(2)(b). But her skeleton offered no plausible alternative interpretation of the exception in consequence of that submission. If “a claim other than a claim to which this Section applies” does not mean a claim other than a claim for damages for personal injury, because of some alleged contradiction with r.44.13, then what does it mean? How is the exception intended to operate?

   2. On behalf of the intervener, Mr Jaffey QC made the same criticism and his skeleton argument did endeavour to answer these questions. But what was offered was a version of the argument rejected in Jeffreys, to the effect that if one of the claims made in the proceedings was a claim for damages for personal injury then, because that was protected by r.44.13, none of the claims in the proceedings could be excepted by r.44.16. It was said this was “a literal reading” of the exception, with the implicit concession that the result might, at the very least, be regarded as unrealistic. In my view, this was not a literal interpretation. Furthermore, if it were right, it would deprive the exception of any utility.

   3. First, I consider that this interpretation does not naturally arise out of the words used. It appears that this was the reason why, when he refused permission to appeal in Siddiqui, Foskett J said that the alternative interpretation was not arguable. It is clear that r.44.13 was widely drawn so as to refer to all proceedings in which there might be a claim for damages for personal injury. Ms Darwin correctly called that “a broad gateway”. But the exception at r.44.16(2)(b) is more specific. It does not refer to proceedings. It simply refers to ‘a claim…other than a claim to which this Section applies’. The narrower words of the exception demonstrate that what the CPR intended was to exempt from the QOCS regime, within the widest possible umbrella of the proceedings as a whole, claims which were not claims for damages for personal injury.

   4. The second reason why the alternative interpretation must be wrong is because it would make the exception redundant. If, as Mr Jaffey argued, claims which include a claim for damages for personal injury, but which also include ‘other’ claims, did not fall within the r.44.16(2)(b) exception, then it is impossible to see how the exception could ever work, or what its purpose or rationale would be. That was one of the points made by Morris J in Jeffreys.

   5. Mr Jaffey worked hard in his skeleton argument to try and identify ways in which, on this assumption, the exception would not be redundant. He identified two types of claim to which the exception might refer: i) applications for pre-action disclosure or for a pre-commencement funding arrangement; and ii) claims for non-personal injury damages in one set of proceedings, which have become consolidated with proceedings that do benefit from QOCS protection. In this context, particular reference was made to the possibility of two separate sets of proceedings in respect of housing disrepair, one being in respect of personal injury, and the other being for the costs of repair or property damage, which proceedings might subsequently be consolidated. I consider that here are two complete answers to those arguments.

   6. The first is that, in my view, it is artificial to conclude that, in providing the general words of the exception at r.44.16(2)(b) (“a claim other than…”), what the CPRC actually had in mind were such relatively uncommon types of applications such as pre-action disclosure, or the rather arcane formalities of consolidated sets of proceedings. There is no basis for saying that the rules were designed to refer only to such limited situations, rather than the ordinary run of civil litigation. If they were designed to be so limited, the rules would have said so.

   7. Secondly, as Lord Faulks QC pointed out for the respondents, the detail of these submissions was also wrong. An application for pre-action disclosure is outside the scope of QOCS in any event, as a result of the express words at r.44.13(1)^[3]. In relation to the example of consolidated proceedings, the whole purpose of consolidation is that the two original sets of proceedings become one. Thus, on the interpretation contended for by the appellant and intervener, in the single set of proceedings following consolidation, the r.44.16(2)(b) exception would not apply in any event.

   8. At root, the appellant’s case on the so-called ‘literal interpretation’, as expanded by the intervener, had to be that the r.44.16(2)(b) exception could not arise in any proceedings to which QOCS applied. In that way it would no longer be an exception to the QOCS regime at all. That result would obviously be contrary to the scheme set out at r.44.14 and r.44.16.

   9. For all those reasons, therefore, I do not consider that the so-called ‘literal’ interpretation is any such thing. It would make r.44.16(2)(b) redundant. I therefore reject it.

5.3 ‘Claim’ to be read as ‘Cause of Action’

1. 1. Perhaps conscious of the difficulties with the so-called literal interpretation, at the hearing of the appeal Ms Darwin suggested that it was instead appropriate to interpret ‘claim’ in r.44.16(2)(b) as meaning a cause of action. She said that Judge Luba had been right to adopt this approach (paragraph 7 above) “because each of the four heads or causes of action alleged that personal injury had followed as a consequence”. Mr Jaffey also sought to advance this alternative argument. He put it slightly differently, suggesting that the reference at r.44.16(1) to “claim” must be to “cause of action”, and so the same should apply to r.44.16(2)(b).

   2. The effect of these submissions would be that, regardless of the nature, scope and extent of the underlying cause or causes of action, if damages for personal injury were claimed as a consequence of each pleaded cause of action, the exception would not apply and automatic QOCS protection would remain. However, I consider that there are a number of fundamental difficulties with this interpretation.

   3. First, addressing Mr Jaffey’s particular submission, I do not accept that the reference to “claim” in r.44.16(1) is necessarily intended to encompass a cause of action. On the contrary, an aspect of the claim may be found to be fundamentally dishonest, with the consequence that the claim fell outside the QOCS regime, but it would not necessarily require an element of the underlying cause of action itself to be fundamentally dishonest before that result eventuated. Take for example a case where there is a valid claim in negligence for damages for personal injury, but where the extent of a very minor injury had been grossly exaggerated by the claimant into a claim for six months incapacity and loss of earnings. Video footage revealed the extent of the deception. In such a case, the necessary ingredients of the claimant’s underlying cause of action may all be in place (the existence of the duty, the breach of that duty, the causation of a very minor injury), but the dishonesty in respect of the level of damages claimed may be regarded by the court as so fundamental that the QOCS protection was lost.

   4. Secondly, a claim for damages for personal injury is not a cause of action at all. A cause of action is, for example, a breach of duty or a claim under a statute. A claim for damages in respect of personal injury is a claim for a particular head of loss arising out of the breach or misconduct of the defendant. The two are not the same at all.

   5. Thirdly, I consider that it is wrong to construe these rules by reference to a cause of action, in circumstances where the rules themselves make no such reference. The words used in the relevant rules are “proceedings” and “claim”, and I have set out the proper interpretation of those words above. There is no reference to “causes of action” in these rules, so to import such a concept, when the rule-makers have not done so, is not a proper method of interpretation.

   6. Fourthly, I note that in the present case at [53], Whipple J was not persuaded that it was necessary to delve into whether or not there were separate causes of action. Similarly, as we have seen, Morris J took the view that it was an unwelcome complication to interpret the rules by reference to whether the claims could be said to be “divisible” or “inextricably linked”. I note paragraphs 53 and 54 of his judgment in Jeffreys where he said:

“53. In my judgment, in each of these examples, proceedings in which claims were brought for those two different types of loss, namely the damage to property and the personal injury, would fall within CPR 44.16(2)(b), even though they arose out of essentially the same facts and out of one and the same breach of duty. Each claim would be for different types of loss (personal injury and non-personal injury) and in claims where damage is an essential element of the cause of action, would in fact arise from different causes of action. There is no basis for requiring the personal injury claim and the non- personal claim to arise out of either distinct facts or distinct breaches of duty. Indeed, it is inherently likely that they will arise out of the same set of facts. What is important ultimately is whether they are claims for different types of loss.

54. In the present case, and even assuming that the malfeasance breaches of duty, indistinctly, caused the psychological injury, there remains the very substantial claims for damages for something other than damages for personal injury. Even though those claims were caused by the same breaches of duty, in my judgment, there were claims “other than a claim for damages for personal injury”. CPR 44.16(2)(b) therefore applies.”

It follows from what I have already said that I agree with that analysis.

1. 1. Finally, on the facts of this particular case, I consider that this interpretation works against the appellant in any event. Here, the appellant had complete – and ultimately successful – causes of action against the respondent under the DPA and HRA and for breach of duty in respect of the misuse of private information. Those claims stood alone: they did not require any claim for personal injury or proof of personal injury damages in order to be successful.

   2. So when, at paragraph 38 of her skeleton argument, Ms Darwin said that, for the exception to apply, “there must be a claim which could stand in proceedings on its own, which does not include a claim for personal injury damages”, the simple answer is that there were such claims in these proceedings; which did stand alone; which included claims for personal injury damages but which did not depend on such claims; and which non-personal injury claims were successful. Thus, on the appellant’s own case, the exception at r.44.16(2)(b) must apply.

   3. This perhaps highlights the difficulties involved in any more convoluted construction of the rule beyond the straightforward interpretation set out in Section 5.1 above.

5.4 The Effect On Ordinary Claims For Personal Injuries

1. 1. During the course of the appeal, much was made by both Mr Jaffey and Ms Darwin about the effect of Whipple J’s analysis on what might be called ‘ordinary’ claims for personal injuries. The court was given examples of plumbers with claims for loss of earnings or businessmen with damaged vehicles, with the suggestion that, as a result of Jeffreys, Siddiqui and the judgment below, QOCS protection would not be available to these (and numerous other) hypothetical claimants. In an undoubtedly memorable submission, Ms Darwin went so far as to suggest that, if the appeal was not allowed, it would mean that, by reference to the well-worn facts of Donoghue v Stevenson, Ms Donoghue would have lost her QOCS protection if she had been claiming for the cost of another bottle of ginger beer, as well as for damages for gastro-enteritis.

   2. Whilst this court should be wary about endeavouring to give comprehensive guidance in circumstances where the appeal arises out of a very different type of litigation, it does seem to me that there are some straightforward points that can be made which answer the submissions made, and which may be of assistance to those grappling with the outer limits of the QOCS regime.

   3. The starting point is that QOCS protection only applies to claims for damages in respect of personal injuries. What is encompassed by such claims? It seems to me that such claims will include, not only the damages due as a result of pain and suffering, but also things like the cost of medical treatment and, in a more serious case, the costs of adapting accommodation and everything that goes with long term medical care. In addition, contrary to the submissions advanced by Ms Darwin and Mr Jaffey, I consider that a claim for damages for personal injury will also encompass all other claims consequential upon that personal injury. They will include, for example, a claim for lost earnings as a result of the injury and the consequential time off work.

   4. In other words, a claim for damages in respect of personal injury is not limited to damages for pain and suffering. For these reasons, as Whipple J noted at [60] of her judgment, claimants in a large swathe of ‘ordinary’ personal injury claims will have the protection and certainty of QOCS.

   5. I acknowledge that, in personal injury proceedings, another common claim will be for damage to property. For example, in RTA litigation, there will usually be a claim for the cost of repairs to the original vehicle, and the cost of alternative vehicle hire until those repairs are effected. Such claims are not consequential or dependent upon the incurring of a physical injury: they are equally available to a claimant who survived the accident without a scratch as they are to a claimant who broke both legs in the accident. They are claims consequent upon damage to property, namely the vehicle that suffered the accident, and therefore fall within the mixed claim exception at r.44.16(2)(b).

   6. But in such proceedings, the fact that there is a claim for damages in respect of personal injury, and a claim for damage to property, does not mean that the QOCS regime suddenly becomes irrelevant. On the contrary, I consider that, when dealing with costs at the conclusion of such a case, the fact that QOCS protection would have been available for the personal injury claim will be the starting point, and possibly the finishing point too, of any exercise of the judge’s discretion on costs. If (unlike the present case) the proceedings can fairly be described in the round as a personal injury case then, unless there are exceptional features of the non-personal injury claims (such as gross exaggeration of the alternative car hire claim, or something similar), I would expect the judge deciding costs to endeavour to achieve a ‘cost neutral’ result through the exercise of discretion. In this way, whilst it will obviously be a matter for the judge on the facts of the individual case, I consider it likely that, in most mixed claims of the type that I have described, QOCS protection will – in one way or another – continue to apply^[4]. It therefore follows that, as already advertised at paragraphs 16 and 17 above, to the extent that paragraph 12.6 of Practice Direction 44 suggests a different approach, I consider it to be wrong. It needs to be amended as soon as possible.

   7. It is however important that flexibility is preserved. It would be wrong in principle to conclude that all mixed claims require discretion to be exercised in favour of the claimant, because that would lead to abuse, and the regular ‘tacking on’ of a claim for personal injury damages (regardless of the strength or weakness of the claim itself) in all sorts of other kinds of litigation, just to hide behind the QOCS protection (as Foskett J warned in Siddiqui).

   8. Accordingly, I reject the suggestion that, if QOCS protection is not extended to cover every kind of mixed claim, then it will have a potentially adverse effect on personal injuries litigation generally. On the contrary, the absence of any cases hitherto in which this point has arisen in an ordinary personal injury claim only confirms my belief that costs in such cases have generally been properly addressed.

   9. The analysis set out above is sufficient to dispose of this appeal. However, the court heard a number of wider submissions about access to justice. Since a number of those submissions were based on what I consider to be false premises, it is appropriate to say something about that aspect of this appeal.

6. Access To Justice

1. 1. 1 The Effect of the Exception

   2. Both the appellant and the intervener submitted that, if the appeal were dismissed, then not only the appellant but thousands of other claimants with mixed claims would be deprived of the protection of QOCS. For the reasons already set out in Section 5.4 above, I do not agree with the premise of that submission.

   3. Ms Darwin suggested at paragraph 64 of her skeleton that any conclusion which exposed a claimant to the “unconstrained exercise of judicial discretion at the conclusion of the case”, was an outcome to be avoided at all costs. With respect, such a suggestion is misguided: costs disputes are routinely decided through the exercise of the judge’s discretion. What this argument highlighted was that what the appellant – and more particularly, the intervener – really wanted to achieve is the certainty of knowing that, regardless of the result, and regardless of how insignificant the claim for personal injury damages might be to the proceedings as a whole, a claimant with a mixed claim had automatic and inviolable QOCS protection.

6.2 Certainty

1. 1. Certainty about the result on costs before the proceedings themselves have even started, let alone finished, is unusual. In some specialist areas, and for small claims in the county court, there is certainty, but in the usual run of civil litigation, there is not. That would be contrary to the common law principle, enshrined in r.44.2(2)(a), that costs follow the event. If the event has not yet happened, the outcome on costs cannot be certain, unless there is specific and express provision to that effect in the CPR.

   2. If there is a claim for damages in respect of personal injury, then the QOCS regime, set out above, provides the required certainty. Any claimant can make such a claim knowing that he or she will not be the subject of any adverse costs order in an amount higher than the sum (if any) which they recover in the proceedings.

   3. If, on the other hand, the claimant is making claims for damages or other relief which are unrelated to personal injury, then that certainty is not generally achieved. There is no existing statutory provision, no part of the Jackson review, and certainly no part of the CPR, which indicates that the certainty of automatic costs protection, in respect of claims for non-personal injury damages, was intended or required.

   4. On a related point, there was an underlying theme to the submissions of both the appellant and the intervener, to the effect that claims of the kind brought by the appellant (misuse of personal information and breaches of the DPA) should be the subject of QOCS in any event. There may be force in that – QOCS is generally regarded as a successful invention – but it can only be extended to other areas of civil litigation by amendments to the CPR, not by judicial intervention.

   5. If the claim is a mixed claim, then the position on costs is a blend of the two approaches, as explained in paragraphs 52-59 above. Contrary to the suggestions of Ms Darwin and Mr Jaffey, I consider that to be an accessible, fair and efficient costs regime, in accordance with the obligations on the CPRC pursuant to section 1(3) of the Civil Procedure Act 1997, and in accordance the over-riding objective at CPR 1.1.

6.3 Deterrent Effect

1. Finally, much was made about the deterrent effect that the judgments in Jeffreys, Siddiqui and the present case may or will have upon claimants who are considering bringing proceedings. Again, that wide-ranging submission needs to be carefully analysed.

2. I accept that a claimant is more likely to bring a claim if he or she knows that there will be no adverse cost consequences of so doing. That is self-evident, so it is therefore unsurprising that the anecdotal evidence gathered together by the intervener is to the same effect. But it cannot sensibly be described as a deterrent to advise a claimant pursuing a claim for non-personal injury damages that the question of costs will be a matter for the judge’s discretion at the end of the case.

3. Finally, in connection with the deterrent argument, Ms Darwin made much of the need to ensure access to justice for victims of personal injury. Of course: that is what the QOCS regime is all about. But in the present case, the appellant was not the victim of personal injury: her claim for personal injury damages was rejected and there was no appeal. The appellant did have a valid (non-personal injury) claim under the DPA and HRA and in tort on which she was successful. Her difficulty was that she had refused the offers of a total of £18,000 and at the end of the trial recovered just £9,000. In other words, the proceedings following the appellant’s rejection of the offer, were a waste of time and money for all parties, having been necessitated only by the appellant’s refusal to accept much more than she eventually recovered. Should the appellant be able to avoid the usual cost consequences of her conduct, merely because she had a claim for damages for personal injury which the judge rejected? For all the reasons I have given, the answer must be No, and no wider considerations of access to justice, properly analysed, can make any difference to that conclusion.