QOCS PROTECTION APPLIED TO THE PERIOD BEFORE THE CLAIM WAS AMENDED TO PLEAD A CLAIM FOR PERSONAL INJURY: HIGH COURT DECISION TODAY

December 16, 2022 · by · in Appeals, Costs, Personal Injury, QOCS

In Pathan v Commissioner of Police of the Metropolis [2022] EWHC 3244 (KB) Mr Justice Bourne held that an action could not become subject to QOCS part way through. If the claim was a personal injury claim at trial then the QOCS principles applied throughout.   He allowed an appeal where the judge had held that QOCS only applied after the claim had been amended to plead it as a personal injury claim.  The action, prima facie, had QOCS protection throughout, whether or not that protection should be applied was a matter of discretion, which was remitted to the trial judge to consider.

 

THE CASE

The claimant brought an action against the police. She issued proceedings, without representation, alleging that her arrest and detention had been unlawful.   The original Particulars of Claim alleged “loss and damage”, but did not state that she was making a claim for personal injury.  After obtaining legal representation she amended her claim to include a personal injury claim.

THE ORDER FOR COSTS AFTER TRIAL

The trial judge found that the arrest and detention had been lawful, the claim failed in its entirety.  The trial judge then held that the claimant would pay the defendant’s costs, subject to QOCS.

However the trial judge also found that, until the claim had been amended to specifically include a personal injury claim, it was not subject to QOCS protection.
“86. QOCS would normally apply to a personal injury case and I am grateful to the parties for showing me the case of Brown v Commissioner of the Police of the Metropolis [2019] EWCA 1724, which is the leading authority on the question of disapplication of QOCS in certain circumstances.
87. My view is that up until the date when HHJ Richard Roberts made the order allowing the claimant to amend the particulars of claim in this action, the case was simply a loss of liberty case. It was not a personal injury case. On that date, it became in my view, a personal injury case or at least a substantially enlarged portion of the case became a personal injury case.
88. In my view, the correct application of the QOCS exceptions is for me to make an order that the QOCS protection only applies to the period as from 22 January 2021. Prior to that, the QOCS protection cannot apply because it is simply not during that period, a personal injury case. I do not agree with Mr Bennie’s submission that this is a retrospective application.
89. In my view, the claimant should pay the defendant’s costs of the action up until 22 January 2021 on the standard basis and for the whole of the action, but as from 22 January 2021, it should be applied as subject to QOCS. In order to explain why my decision is in relation to the post-22 January period is that this case was substantially, from that date, a personal injury action. Most of the evidence I have heard during the trial, in fact nearly all was relating to the PI aspect of the claim. it clearly formed the vast majority and I think it is very difficult to strip out which part relates to loss of liberty and which part relates to personal injury because it relates all back to the same incident, namely the arrest.”

THE CLAIMANT’S APPEAL

The claimant appealed the decision in relation to QOCS not applying prior to amendment.   The appeal was allowed and the matter remitted to the trial judge.

THE JUDGMENT ON APPEAL

    1. In my judgment, the learned Judge did rule that the QOCS regime was inapplicable to the period before the amendment. Although paragraph 88 of the judgment is ambiguous, the words “QOCS protection cannot apply” are more consistent with that meaning, and the Judge’s rejection of the “submission that this is a retrospective application” can only mean that, in the view of the Judge, the amendment did not have the effect of applying QOCS to the whole of the claim. Moreover, the reason given in paragraph 88 for the judge’s order is that the claim at the relevant time “was not a personal injury case”. The judge did not say that the case fell within rule 44.16(2)(b) because it was a mixed claim and that he therefore had a discretion to permit enforcement, or give any reason for his exercise of the discretion other than the lack of a personal injury claim at the relevant time.
    1. Although Mr Talalay is right to observe that, on this interpretation, there was no need for the permission to enforce which paragraph 3 of the order appears to grant, that paragraph can be read as merely declaring the position as the judge saw it, i.e. that enforcement was permissible because QOCS did not apply, rather than as a grant of permission.
    1. I also agree with the appellant that this was an error of law.
    1. The case of Achille is consistent with that conclusion. QOCS applied to all of the proceedings in that case, even after the personal injury claim had been struck out. It would therefore be logical for QOCS to apply to all of the proceedings in the present case, even before the addition of the personal injury claim.
    1. Whether or not Achille compels that conclusion, I consider that the meaning of rule 44.13(1) is clear. The QOCS regime, which includes certain layers of judicial discretion, applies if proceedings include a personal injury claim and does not apply if proceedings do not include a personal injury claim. That question, to be asked and answered when the judge considers what if any order to make relating to the enforcement of a costs order, is a binary question, in other words there are only two possible answers, which are “yes” and “no”. In the present case the proceedings included a personal injury claim and so the answer was yes. Moreover, that was indisputably so on the date when the judge made his order, making the position in this case clearer than it was in Achille. The QOCS regime therefore applied to the proceedings. With all due respect to the judge, who gave a careful and detailed judgment on the claim, he fell into error by ruling that QOCS was to be applied only to the proceedings occurring after the amendment.
    1. I am not persuaded that the doctrine of “relation back” is relevant. This is not a case of an amendment having retrospective effect. Instead, a choice has been made by the drafters of the CPR about when the enforcement position is automatic and when it is discretionary.
    1. Mr Talalay argues that the above interpretation would encourage claimants to bolster weak claims by adding spurious personal injury claims to them at a late stage in the hope of obtaining costs protection.
    1. That argument has been advanced and considered in other cases about the scope and effect of QOCS. In Siddiqui v University of Oxford [2018] 4 WLR 62, Foskett J found that the proceedings were a mixed claim falling within rule 44.16(2)(b). He said at [8]:
“It is … an important objective to ensure that the QOCS provisions are not abused by simply ‘dressing up’ a non-personal injuries claim in the clothes of a personal injuries claim to avoid the normal consequences of a failure in litigation.”
    1. That passage was referred to in Brown, where Coulson LJ set out his conclusion on how mixed claims are dealt with, emphasizing the need for flexibility in the application of the discretion under rule 44.16(2)(b):
“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).”
    1. So, whilst the danger of encouraging spurious personal injury claims is recognised in the authorities, the solution is identified as the exercise by judges of the discretion conferred by rule 44.16(2)(b) in mixed claims. The solution is not a reading of rules 44.13 and 44.14 which excludes a period of time before a personal injury claim was added by amendment.
    1. Finally, in respect of the appeal, Mr Talalay submits that this Court nevertheless should not interfere with the judge’s order. Even if QOCS applied to the pre-amendment segment of the costs, the absence of any personal injury element at that time (to which the judge referred) meant that the only just course was to disapply QOCS under rule 44.16(2)(b). Therefore, he submits, the judge made the right order even if for the wrong reason.
    1. In my judgment, it is impossible to conclude that an order permitting enforcement of the pre-amendment costs was necessarily the just outcome. It was for the judge to consider what order was just, having regard to the application of QOCS and therefore to the fact that non-enforcement was the starting point, and I have held that he did not do so. The judge would then have had to consider the nature of this mixed claim, bearing in mind the observations of Coulson LJ in Brown which are quoted above. He would have had to consider what was known, and what could reasonably be inferred, about the reason why the proceedings did not initially include a personal injury claim. At one end of the spectrum is the case where a spurious personal injury claim is “tacked on”, but (given the facts as summarised above) I see no basis for concluding that this was such a case. At the other end might be a case where all claims, personal injury and otherwise, arose from the same incident (as in this case) and where a personal injury claim initially was not advanced because of a lack of professional advice (which may or may not have been the case here). Even if the judge was minded to permit some enforcement, he would have had to consider what order would be just for the period between 13 August 2020 (when permission to add a personal injury claim was first sought, albeit without evidence from a psychiatrist) and 22 January 2021 when permission was granted. The judge might also have been able to have regard to the strength or weakness of the appellant’s case as to the causation and quantum of loss and damage, subject to liability.
    1. That exercise has not been performed, and I am not in as good a position as the judge to perform it.
  1. The appeal must therefore be allowed and the issue remitted to the County Court.