In Wokingham Borough Council v Arshad [2022] EWHC 2419 (KB) Mr Justice Bourne considered whether QOCS protection should be applied to a claimant who had brought a claim for personal injury damages, in addition to other claims. The judge held it was appropriate to use his discretion so that QOCS applied.
THE CASE
The claimant wished to work as a taxi driver. He contacted the defendant which was responsible for licensing to see whether the vehicle he proposed to purchase was suitable. He and was told that the vehicle he planned to buy was suitable and purchased it. The defendant then inspected the vehicle and was not told it was suitable and could not be used. The claimant successfully complained to the Local Government Ombudsman which found that the defendant was at fault because it gave incorrect information. The matter led to the council reviewing its policy and looking at other similar vehicles already in use.
THE ACTION
The claimant stopped work as a taxi driver and, acting largely as a litigant in person, brought an action for damages. His case was that the loss of his licence and consequential loss of livelihood and status brought about a Depressive Disorder. He alleged:
- Discrimination on the grounds of race or religion;
- Negligence (in the provision of advice that the Ford Galaxy would be an appropriate vehicle);
3. Breach of duty (in the carrying out by the Council of their statutory duties relating to hackney carriage licensing).
THE CLAIMANT’S SUCCESS AT TRIAL
The claimant succeeded at trial in relation to the negligence claim. . Damages of £42,500 were awarded in relation to the personal injury claim. The judge ordered the defendant to pay costs of £6,720 to the claimant. She did not order that the claimant pay the defendant’s costs on the unsuccessful elements of the claim.
THE DEFENDANT’S SUCCESSFUL APPEAL
The defendant successfully appealed the action. Mr Justice Bourne held that a duty of care was owed but that the injuries were not reasonably foreseeable.
COSTS OF THE ACTION AND QOCS
The defendant being successful in the appeal the issue arose as to the extent to which QOCS applied. The claim had included non-personal injury elements so QOCS did not apply automatically. Rather it was a matter for the court’s discretion. The judge held it was appropriate to exercise that discretion to give the claimant QOCS protection.
113. It is equally clear that the Defendant as the successful party should have an order for its reasonable costs here and below.
114. However, the CPR provisions about “QOCS” apply to this claim because it included a claim for damages for personal injuries. I have already referred to CPR 44.14 (1) which provides:
“(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.”
115. So in this case where there is no award to the Claimant, the Defendant’s costs order cannot be enforced unless an exception applies. As I have said, an exception applies in this case by virtue of CPR 44.16:
“(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 –
(a) the proceedings include a claim which is made for the financial benefit of a person other than the claimant or a dependant within the meaning of section 1(3) of the Fatal Accidents Act 1976 (other than a claim in respect of the gratuitous provision of care, earnings paid by an employer or medical expenses); or
(b) a claim is made for the benefit of the claimant other than a claim to which this Section applies.”
116. The proceedings included the claims for financial loss arising from the various causes of action to which I have referred above, and these non personal injury claims were not “a claim to which this Section applies”. This is therefore not a case in which the Defendant’s costs order is automatically not enforceable. Instead, enforceability is a matter for the Court’s discretion.
117. Neither party has suggested that I should remit that question to the trial judge and in my judgment, it is in the parties’ interests and in the interests of justice for me to determine it.
118. The Court of Appeal gave guidance on the exercise of the discretion in Brown v Commissioner of Police of the Metropolis and another (EHRC intervening) [2019] EWCA Civ 1724, [2020] 1 WLR 1257. There, Coulson LJ referred to “mixed” proceedings, i.e. those with claims in additional to a personal injury claim, and said:
“57. 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 …
58. 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 [2018] 4 WLR 62 ).”
119. In Brown, as in this case, there were genuinely mixed claims so that the proceedings could not just be characterised as a personal injury claim with some consequential economic loss. There, as here, the personal injury claim failed. Other claims succeeded but fell short of a Part 36 offer made by the defendant. Coulson LJ ruled that the claimant should not be able to avoid the usual costs consequences of that, merely because she had an unsuccessful personal injury claim.
120. However, in this case the arguments in favour of a costs-neutral outcome do not consist only of the fact that Mr Arshad had an unsuccessful personal injury claim. He was the victim of negligence, although suffering loss of a kind which I have ruled was not reasonably foreseeable. The situation arose in part because of the defective nature of the Council’s policy. He was then also the victim of treatment which, for no apparent good reason, was different from that of other drivers in an analogous position. Meanwhile the fact that he had an unsuccessful personal injury claim, though not entitling him to automatic protection, still provides some protection under the rules by subjecting enforcement to the discretion under CPR 44.16. It does seem to me that the personal injury element was a substantial part of the claim. That claim failed not because it lacked factual merit, but because of the legal issues around claims for psychiatric harm which are challenging for lawyers, let alone for litigants in person.
121.Bearing in mind all the facts, and what I have been told about their impact on Mr Arshad and his personal and financial situation, I am not persuaded that it is “just” to permit any enforcement of the costs order against him.
122.It will be scant consolation to Mr Arshad, but I must end by recording my sympathy for the great difficulties which he has endured through no fault of his own.
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