DEFENDANT NOT GIVEN PERMISSION TO ENFORCE COSTS IN A CASE WHERE THERE WAS A “MIXED CLAIM”

I am grateful to Kevin Donoghue from Donoghue solicitors for bringing my attention to the judgment of Mrs Justice Hill in Afriyie v Commissioner of Police for the City of London (Re Costs) [2023] EWHC 1974 (KB). It is a case where the court refused the defendant’s application to enforce costs against the claimant in a case where there was a “mixed” claim.

“Rather than focussing on the Claimant’s causes of action, it is more helpful to consider the types of damages he sought.”

THE CASE

The claimant had brought an action against the defendant for assault, battery and misfeasance in public office. The action failed. The defendant’s assertions that the claimant had been fundamentally dishonest were not accepted (this aspect of the claim was looked at in an earlier post).

COSTS AND QOCS

It was agreed that the claimant was liable to pay the defendant’s costs. The question was the extent to which the claimant was protected by QOCS.

1. 1. While the Claimant initially suggested that the proper order was no order for costs, in submissions Mr Hughes accepted that as the Claimant was the unsuccessful party, the court was likely to order that he pay the Defendants’ costs. In my judgment, that is the correct starting point, given the general rule set out in CPR 44.2(2)(a) to the effect that the unsuccessful party will be ordered to pay the costs of the successful one.

1. 1. However, the parties agreed that this is a “mixed claim” for the purposes of the Qualified One-Way Costs Shifting (“QOCS”) regime. The key issue between the parties therefore related to whether permission to enforce such a costs order against the Claimant should be granted. The Defendant did not seek such permission under the CPR r 44.16(1) on the basis that the Claimant had been fundamentally dishonest; but relied on the “mixed claim” provision for the grant of permission under CPR r 44.16(2)(b).

1. The Defendant sought permission to enforce the costs order against the Claimant to the level of 25% of her costs. She also sought an interim payment on account of costs under CPR r 44.2(8) of £10,000.

MIXED CLAIMS AND QOCS

It was common ground that this was a “mixed claim”.   The judge considered the relevant principles and authorities. The question was whether it was “just” for the defendant to be allowed to enforce the costs order, and if so to what extent.

1. 1. As noted at [3] above the parties agreed that this was a “mixed claim” within CPR r 44.16(2)(b). On that basis the central issue is whether it is “just” in the exercise of the Court’s discretion to grant permission under CPR r 44.16(2) for the Defendant to enforce the costs order against the Claimant, and if so, to what extent.

1. 1. Although Mr Ley-Morgan relied on the general costs discretion under CPR r 44.2, the manner in which the specific discretion under CPR r 44.16(2) should be exercised was described by Coulson LJ in Brown at [57]-[58], as recently confirmed in Achille v Lawn Tennis Association Services Limited [2023] 1 WLR 1371 at [37].

5.1: Can this fairly be described “in the round” as a personal injury case?

1. 1. Following Brown at [52], it is necessary for me to determine, first, whether in Coulson LJ’s words, these proceedings “can fairly be described in the round as a personal injury case”.

1. 1. Mr Ley-Morgan argued that the Claimant had brought a claim for misfeasance in public office, which was something other than a claim for personal injuries. However, in Brown at [43]-[51], Coulson LJ rejected the argument that “claim” for the purposes of CPR r.44.16(2)(b) should be interpreted as referring to a cause of action, observing at [46] that:

“… 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.” 

1. 1. I consider that the same approach should be taken when considering whether a claim is, in the round, one for personal injuries. On that basis, the fact that one of the Claimant’s causes of action was a claim for misfeasance is of limited assistance in determining whether his claim was, in the round, a personal injury claim. In any event, on the facts of this particular case, the acts of misfeasance alleged were the acts of threatening and causing the Claimant personal injuries, without lawful justification: see [114] of the liability judgment.

1. 1. Rather than focussing on the Claimant’s causes of action, it is more helpful to consider the types of damages he sought. These were addressed at section 6 of the liability judgment, in five categories: (i) basic damages for assault and battery; (ii) general damages for personal injuries; (iii) special damages; (iv) aggravated damages; and (v) exemplary damages.

1. 1. Under category (ii), the Claimant sought damages for pain, suffering and loss of amenity in respect of (a) head injuries; (b) further physical injuries (namely puncture wounds to his posterior chest wall and injuries to his back and knee); and (c) psychiatric injuries. These claims plainly fell within Coulson LJ’s definition of “claims in respect of personal injuries” set out in Brown at [54]: see [11] above.

1. 1. So too does category (iii) insofar as the special damages claimed related to the costs of medical appointments and treatment. The modest further special damages claims relating to the Claimant’s clothing were “consequent upon damage to property” and thus not claims in respect of personal injuries, per Coulson LJ in Brown at [56] (see [12] above).

1. 1. The claims for basic damages for assault and battery under (i) above were not claims in respect of personal injuries. However, they reflected a modest part of the Claimant’s claim. They would have merited a total award of £1,500 had the claims succeeded: see [118]-[119] of the liability judgment. I accept Mr Hughes’ submission that it is unlikely that the case would have been litigated if this was the extent of the Claimant’s claim. Mr Ley-Morgan placed no reliance on this factor in his submissions.

1. 1. Similarly, the claims for aggravated and exemplary damages under (iv) and (v) above did not “relate to, nor require proof of, any personal injury”; rather they are “further heads of claim of punitive and compensatory damages respectively“: Jeffreys v Commissioner of the Metropolis [2017] EWHC 1505 (QB), [2018] 1WLR 3633 at [42], per Morris J.

1. 1. These claims were a substantial part of the claim in terms of its overall value. In his opening submissions, Mr Hughes contended that no less than £10,000 would be appropriate in aggravated damages and no less than £50,000 in exemplary damages; whereas he sought awards of £7,000 for the Claimant’s head injuries; £5,000 and £6,000 for his back and knee injuries respectively; and somewhere towards the lower end of the £23,150 to £59,860 range for his psychiatric injuries.

1. 1. However, the grounds on which both aggravated and exemplary damages were sought, as set out at [149]-[154] and [158] of the liability judgment, all flowed from the actions of the Defendant’s officers in tasering and handcuffing the Claimant, thereby causing him personal injuries, and then, on his case, lying about it, and unfairly cross-examining him about his belief that the officers’ actions had been motivated by his race.

1. 1. Further, as Mr Hughes highlighted, the issues underpinning the claims for aggravated and exemplary damages were matters that the court would have had to consider in any event, as they were relevant to the primary issues of liability for assault, battery and misfeasance: for example, whether the officers had fabricated their accounts was relevant to whether their stated beliefs in the need to use force were honest, and reasonable, and were thus relevant to liability.

1. 1. As noted at [53] of the liability judgment, the assault claim based on the act of tasering the Claimant was the most serious of his assault claims. In my judgment it was that act which was at the heart of the case, and the claims for aggravated and exemplary damages related largely to matters which made the Claimant’s experience of being tasered worse and/or the actions of both parties in seeking to explain the tasering after the event. The act of tasering the Claimant was one that did cause him personal injuries and involved the use of potentially lethal force on him: see [70] of the liability judgment.

1. 1. For these reasons I consider that the claim was, in the round, one for personal injuries.

5.2: Are there any “exceptional features” of the non-personal injury claims?

1. 1. On that basis, applying Brown at [57], the “starting point” for the exercise of the discretion is that QOCS protection would have been available for the personal injury claim, and it is expected that a ‘cost neutral’ result would be achieved through the exercise of the discretion unless there are “exceptional features of the non-personal injury claims”.

1. 1. I remind myself that in Brown at [57] Coulson LJ gave as an example of the sort of matter that might constitute an exceptional feature of a non-personal injury claim “gross exaggeration of the alternative car hire claim”.

1. 1. As noted at [22]-[24] above, the only “non-personal injury” claims pursued by the Claimant in this case related to (i) basic damages for assault and battery; (ii) special damages for his clothing; and (iii) aggravated and exemplary damages.

1. 1. Mr Ley-Morgan’s submissions were not directed to the question of whether there were any exceptional features of these claims. Instead he submitted that the following matters should be taken into account in the exercise of the general costs discretion under CPR r 44.2:

(i) The Claimant’s rejection of three (non-Part 36) offers by the Defendant to settle the claim on a “drop hands” basis, leading to the wasted costs of the trials;

(ii) The fact that the Claimant did not limit his assault claim to the argument that the use of the taser was not objectively reasonable but instead made extremely serious allegations of bad faith and corruption on the part of the police officers;

(iii) The Claimant’s pursuit of a misfeasance claim which added nothing to the other claims (see [116] of the liability judgment) and which should therefore have been withdrawn;

(iv) The Defendant’s success on all the issues;

(v) The finding that the Claimant’s conduct caused or at least contributed to the incident (see [155] of the liability judgment);

(vi) The “significant similarities” in the statements of the Claimant, Mr Cole and Mr Grant (see [153] of the liability judgment);

(vii) The finding that the Claimant had been dishonest on the issue of whether he had cooperated with the breath test procedure (see [171] of the liability judgment); and

(viii) The interview the Claimant gave to The Guardian before the first trial (see [150] of the liability judgment), which was an unacceptable attempt to pressure the Defendant to settle the claim, and his pursuit of an exemplary damages claim on the basis that it was grossly offensive for him to be cross examined about it.

1. 1. In fairness to the Defendant, I have considered whether any of these matters can properly be considered “exceptional”. I have concluded that they cannot.

1. 1. In my judgment, matters (i)-(iv) above reflect nothing more than the usual incidences of litigation, where one party chooses to litigate a claim in a certain way but is unsuccessful. These matters have contributed to the usual order for costs, namely that the Claimant should pay the Defendant’s costs, but they are not exceptional for the purposes of the CPR r 44.16(2)(b) discretion.

1. 1. Further, matter (iv) must be seen in the context of the Defendant failing on a key element of her defence, namely that relating to fundamental dishonesty (see section 7 of the liability judgment): she was not, therefore, successful on “all” the issues as Mr Ley-Morgan contended. The fundamental dishonesty issue itself added to the time and costs of the second trial.

1. 1. Matter (v) was relevant to the quantum of damages the Claimant would have recovered had his claim succeeded, but does not mean he was so wrong to litigate the claim that it is an “exceptional” feature of the litigation.

1. 1. Matter (vi) has to be seen in the context of the fact that precisely the same finding was made against the Defendant’s own officers: see [85] of the liability judgment, where it was found that the totality of the officers’ evidence created “a justified concern…that the officers had colluded together to deliberately exaggerate the Claimant’s conduct to make him appear more aggressive than he had in fact been”; and where it was noted that the Defendant had chosen not to call any of these officers as witnesses at trial.

1. 1. Matter (vii) was explored fully in the context of the Claimant’s exemplary damages claim: see [150]-[152] of the liability judgment. By giving an interview that was inconsistent with his pleaded case the Claimant exposed himself to a risk of cross-examination, but I am not willing to make the finding sought by the Defendant as to his motives for doing so, or to conclude that this conduct was “exceptional” for these purposes.

1. 1. Even if any of these matters could properly be said to be exceptional, they do not relate exclusively to the non-personal injury claims, but were applicable to the personal injury claims too.

1. 1. I do not therefore consider that there are any exceptional features of the non-personal injury claims, such that a ‘cost neutral’ result through the exercise of the discretion is appropriate, applying Coulson LJ’s guidance in Brown at [57].

6: Conclusion

1. For the reasons set out herein I order that the Claimant shall pay the Defendant’s costs, to be assessed if not agreed, but permission to enforce those costs under CPR r 44.16(2)(b) is refused. It follows that the Defendant’s application for a payment on account of costs is also dismissed.