QOCS: CLAIMS FOR £1 IN DAMAGES AND NOMINAL DAMAGES STILL HAVE QOCS PROTECTION

In Clark & Ors v Adams & Anor [2024] EWHC 62 (KB) Mr Justice Soole determined that claims for £1 in damages and for “vindicatory purposes only” still have the protection of QOCS.  The size of the claim and the fact a deliberate decision had been made to limit damages to £1 did not meant that these were not claims for damages for personal injury.

“A claimant may properly decide to limit the amount of damages claim for personal injury to a sum which does not reflect the full compensation which the law would otherwise provide. This may be for a number of reasons including limiting the fee payable for issuing the claim and/or limiting the costs of pursuing a claim for full compensation and/or having regard to circumstances where the particular defendant is of limited means and/or where the principal wish is to establish liability and thereby vindicate rights. Mr Hermer rightly accepted that QOCS protection would apply in circumstances where the damages claimed in an otherwise conventional personal injury claim were limited to a small fraction of the potential recovery, say £1000.”

THE CASE

The claimants brought proceedings against Gerry Adams and the Provisional Irish Republican Army claiming damages arising out bombings in 1973, 1996 and 2002. The action was issued in 2022.  The claimant’s claimed  “£1 for vindicatory purposes‘ against Mr Gerry Adams (as First Defendant) and the PIRA (as Second Defendant)”.  The actions against both defendants were struck out on the grounds that the PIRA was an unincorporated association and could not be sued in its own right. The action against Mr Adams in a representative capacity fualed, because he was not he was not an appropriate representative of a class.  The action against him in a personal capacity was allowed to continue.

DID QOCS APPLY?

The judge then considered whether this was a QOCS case and whether it was appropriate to make a declaration at this stage.  The defendant argued that the nature of the claim, and the nominal damages sought, did not mean that was not an action for damages for personal injury.

THE JUDGMENT ON THE QOCS ISSUE

 

    1. I accept that the Court should exercise its case management powers so as to make a declaration at this stage on the issue of QOCS protection. This is consistent with the objective of achieving certainty for the parties at an early stage (Brown at [64]). I do not consider that the contingent possibility of an application to amend the claim is a sufficient reason to postpone the decision.

 

    1. I consider the following relevant principles to apply:

 

(i) The issue should in principle be determined by reference to the pleaded claim i.e. the ACF and APOC. It is these statements of case which should identify the nature of the claim;

(ii) in a case where the statements of case show a genuine ambiguity as to the nature of the claim, it may be legitimate to consider contemporaneous correspondence between the parties in order to resolve the ambiguity. However the Court should act cautiously in this respect and keep its principal focus on the statements of case;

(iii) the expression ‘damages…for personal injuries’ in the rule should be given a broad interpretation, reflecting the broad policy aim (BrownMcDonald); and avoiding undue technicality;

(iv) the focus must be on whether it is a claim for damages for personal injuries, rather than the particular cause(s) of action which supports that claim: see Brown: ‘46…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. 47…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.‘;

(v) whilst a central purpose of the QOCS protection is to achieve equality of arms in an area of litigation where (absent legal aid or recovery of success fee/ATE premium) there would typically be inequality, it is irrelevant that a particular claim, which falls within the language of the rule, is outside that norm. Thus if the claim is one for damages for personal injury, it is irrelevant that (if so) the particular claimant is well-funded and the defendant uninsured and of modest means;

(vi) the claimant’s motive for or purpose in bringing the action is in principle irrelevant. As Lord Bingham stated in Ashley‘…it is not the business of the court to monitor the motives of the parties in bringing and resisting what is, on the face of it, a well recognised claim in tort.‘ [4]. This is of course subject to the doctrine of abuse of process and the exception provided by the QOCS rules in that respect: 44.15(a).

    1. Turning to the statements of case, the ACF alleges that by the act of ‘the Defendant’ (singular) and pursuant to a ‘common design’ each of the Claimants has suffered assault/battery and injury as a result of the respective bombing incident; claims ‘nominal vindicatory damages for assault/battery in respect of loss and damage caused as a result of bomb attacks..‘; and values these at a ‘nominal value of £1 for vindicatory purposes‘. The APOC likewise allege assault and battery ([23]) pursuant to a common design ([37]); in each case causing personal injury ([1], [9], [13], [22]) and loss and damage ([9], [13], [22]), in each case providing particulars of injury ([39]) but no particulars of loss and damage; claim damages ‘in respect of their pain suffering and loss of amenity‘ [40]; and limit the claim to the sum of ‘£1.00 for vindicatory purposes‘: [2], [40] and the prayer for relief, para.1.

 

    1. In my judgment these pleadings set out the necessary ingredients of a claim for damages for personal injury within the meaning of the rule; and contain no averments which are inconsistent with such a claim.

 

    1. I do not accept Mr Hermer’s central arguments that such characterisation of the claim is defeated (individually and/or collectively) (i) by the fact that a claim in assault/battery is actionable without proof of damage and/or (ii) by the absence of a claim for substantial (as opposed to nominal) damages and/or (iii) by the statement that the nominal sum is claimed ‘for vindicatory purposes‘ and/or (iv) on the basis that the claim is in substance a claim for declaratory relief only.

 

Actionable without proof of damage

    1. The principle is expressed by Lord Rodger in Ashley as: ‘A claimant has no cause of action in negligence unless he has suffered injury or damage. By contrast, battery or trespass to the person is actionable without proof that the victim has suffered anything other than the infringement of his right to bodily integrity: the law vindicates that right by awarding nominal damages.‘[60].

 

    1. Accordingly if the statements of case contained no reference to personal injury and the Claimants succeeded in establishing liability at trial, they would be entitled to nominal damages in any event. Thus if they establish each ingredient of their actual pleaded case, i.e. including the consequence of personal injury, their remedy will be no different. That is because the claim limits the remedy to (£1) nominal damages. However it does not follow from this equivalence of remedy that the claim is to be characterised as one for non-injurious assault/battery. That submission both excises a material part of the pleaded claim, i.e. the injuries, and confuses the nature of the claim with the causes of action (cf. Brown). The causes of action are in assault and battery; the claim is for damages for personal injury.

 

Substantial or nominal damages

    1. I accept, of course, that the conventional remedies for a claim of damages for personal injury typically include an award of general damages (PSLA) and special damages for past/future loss consequent upon the injury. Furthermore, and consistently with the claim for nominal damages only, the claim of ‘loss and damage‘ does not plead special damages nor (since deletion) aggravated and exemplary damages.

 

    1. However the APOC contain the express averment of ‘pain suffering and loss of amenity‘ ([40]) and plead particulars of injury. I consider that this is a sufficient pleading of a claim for general damages for PSLA, but limited in amount to a nominal £1.

 

    1. I do not consider that the correspondence between the parties points in a different direction. First, I see no true ambiguity in the language of the statements of case. Secondly, and in any event, whilst the Claimants’ solicitors’ letter of notice dated 22 June 2022 disavows any claim for general damages (para. 12), the following paragraph (13) refers to ‘the continuing effect of exacerbating their pain and suffering‘; and their subsequent letter of 11 October 2022 states, in answer to a question seeking confirmation that no claim for damages for personal injuries are sought, ‘we can confirm that no claim for damages for personal injury is sought beyond the vindicatory sum of £1.Whilst the language of this correspondence could undoubtedly be clearer, it is ultimately consistent with the pleaded claim for damages for personal injury limited to a nominal £1.

 

For vindicatory purposes only

    1. In my judgment these words in the pleaded claim in no way diminish its status as a claim for damages for personal injury within the meaning of the rule.

 

    1. First, the motivation or purpose for bringing a claim is irrelevant; subject only to the principles of abuse of process: see Ashley and CPR 44.15(b). The charge of abuse is expressly disavowed in the present case. In the light of the language used in cases such as Ashley it is understandable that the pleading includes reference to ‘vindicatory purpose‘. However this is strictly immaterial to the characterisation of the claim and should be treated as mere surplusage.

 

    1. Secondly, even if (i) there remains a class of damages in English law known as vindicatory damages (cf. the discussion in McGregor) and (ii) the statements of case were construed as a claim for such damages, it would still be a claim for damages for personal injury within the meaning of the rule. In my judgment the necessary broad construction of the rule does not impose any limitation on the nature of the damages to be awarded, provided that they are for/in respect of personal injury: see Brown and McDonald. For the reasons already given, the pleaded claim meets that description. In my judgment it would be wrong to apply the CPR Glossary so as to equate and confine ‘damages’ to ‘compensation’ and Mr Hermer was right to place less emphasis on that point in his oral submissions. As Ms Studd submitted, damages means damages.

 

    1. The point may be tested another way. A claimant may properly decide to limit the amount of damages claim for personal injury to a sum which does not reflect the full compensation which the law would otherwise provide. This may be for a number of reasons including limiting the fee payable for issuing the claim and/or limiting the costs of pursuing a claim for full compensation and/or having regard to circumstances where the particular defendant is of limited means and/or where the principal wish is to establish liability and thereby vindicate rights. Mr Hermer rightly accepted that QOCS protection would apply in circumstances where the damages claimed in an otherwise conventional personal injury claim were limited to a small fraction of the potential recovery, say £1000.

 

    1. I can see no difference of principle where such a claim is limited to an award of £1 nominal damages. There may be a range of personal injury cases where the claimant for good reason limits the remedy to a nominal sum. For example, as discussed in argument, in a claim of sexual abuse against an uninsured defendant of limited means where the purpose is to vindicate the claimant’s right to bodily integrity. The Jackson report recommended that the proposed regime should apply to all personal injury claims. That recommendation was accepted. I see no basis for the Court to impose any qualification by reference to the amount of damages claimed; nor therefore to require a claimant to pursue substantial damages in a small sum in order to obtain protection.

 

Declaratory relief only?

    1. I also reject the argument that the present claim is in substance one for declaratory relief alone. In the absence of any challenge to the claim as an abuse of process, I see no conflict between the form and substance of the claim. It is a claim for damages for personal injury, limited to a nominal award of £1.

 

    1. In this respect a useful contrast can be made with the case of Ashley. In that case the Claimant’s estate/dependants had been fully compensated by the police. The claim for assault/battery was allowed to proceed. However as Lord Scott recognised, there might be an issue as to whether the appropriate remedy was ‘an award of vindicatory damages or simply a declaration of liability‘: [23]. In the present case there has been no compensation from either Defendant. Accordingly, if the claim were established, there would be no reason to consider a remedy other than the nominal damages which are claimed.

 

    1. For completeness I do not accept that the Claimants’ lack of substantive response to the request for confirmation that applications for criminal injuries compensation were made to the CICA or CICB has any materiality. It does not justify an inference that they have received such compensation, alternatively compensation in the full measure of damages which an unlimited civil claim would provide. In any event I consider that any award of criminal injuries compensation would constitute a gratuitous collateral benefit to be disregarded in the calculation of civil compensation from a tortfeasor.

 

  1. For all these reasons I conclude that the claim enjoys QOCS protection.