The Court of Appeal addressed the application of QOCS in “mixed” claims.
AB had brought actions relating to allegedly wrongful use of personal data, claiming damages for personal injury, for breach of 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. Her claim was therefore “mixed” (i.e. included claims for personal and injury and otherwise) for the purposes of CPR 44.13-44.16.
The court ruled that claims not for personal injury damages, even when brought alongside and arising out of the same facts as a personal injury claim, were not protected by QOCS. However, the QOCS position should be the starting point even when 44.16(2)(b) applied and the judge had a wide discretion as to the extent of any costs awarded.
In this case it suffices to elaborate only the nature of the claims brought by AB, namely that some were for personal injury, some were for general damages for breaches of other rights, some were for exemplary damages and some were for directions to destroy information.
The DPA and HRA claims were admitted by the police and the breach of contract claim was abandoned. The claims for aggravated damages, exemplary damages and directions to destroy information were rejected. The claim for personal injury was also rejected.
AB’s eventual award fell below the level of a part 36 offer made by the police, meaning that she was ordered to pay costs from the end of the relevant period (6).
AB argued, successfully at first instance, that her claim was protected by Qualified One-Way Costs Shifting because it had included a claim for damages for personal injury and did not fall into any of the exceptions set out in CPR 44.16.
The police appealed and Whipple J allowed the appeal, deciding that because this was a mixed claim an exception to QOCS was triggered, namely 44.16(2)(b), that a claim is made for C’s benefit other than a claim to which this section applies.
From paragraph 10 onwards Coulson LJ, giving the judgment of the court, set out the provisions of the QOCS regime. He elucidated the definition of a personal injury claim (13), including affirming the obvious but important point that it encompasses only such injuries that sound in general damages (i.e. generic psychological distress is not recoverable). He described the principle of allowing enforcement only to the extent of a Claimant’s award as being intended to make claims for personal injury damages “cost neutral”.
He also cited paragraph 12.6 of PD44, which states that costs orders made pursuant to 44.16 will normally be made without regard to the amount of damages and costs order in the Claimant’s favour. He strongly doubted that was correct, drawing a distinction between 44.16(1), where blameworthy conduct was inherent, and 44.16(2)(b), which “is not intended to reflect adversely on the claimant and cannot, of itself, justify a similarly harsh approach.” (17)
In relation to authorities, he considered that Wagenaar v Weekend Travel Limited and Another  EWCA Civ 1105 offered no particular assistance either way (19) and from Howe v Motor Insurers’ Bureau (No2)  EWCA Civ 932 one could only really draw the proposition that QOCS was “a domestic version of the European principle of effectiveness.” (20)
His real attention was focused on a trio of cases: Jeffreys v Commissioner of the Metropolis  EWHC 1505 (QB), Siddiqui v The Chancellor, Masters and Scholars of the University of Oxford  EWHC 536 (QB) and the decision below of Whipple J.
In Jeffreys J had sought to argue that the exception in 44.16(2)(b) only applied where the non-PI claim(s) was divisible or separable from the PI claims. That was rejected by Morris J, who stated at paragraph 44 that:
“there is no authority for the proposition that in order for CPR 44.16(2)(b) to apply the personal injury claim and the non-personal injury claim must be “divisible”. There is nothing in the wording of the CPR provision itself to support his. Further, there is no reason in principle why there should be such a requirement.”
In his view, the distinction relied on could be adequately reflected in the exercise of discretion that arises once 44.16(2)(b) applied.
In Siddiqui Foskett J agreed, adding to the list of factors that it was “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 failure in litigation” (see para 8 of the judgment).
Finally, Whipple J below had thought it important the claims under the DPA or for misuse of private information would not ordinarily be described as personal injury claims and would not be described as such for the purposes of limitation, so that even where they did incorporate a head of damages for personal injury that did not bring them within CPR 44.13(1), particularly where the personal injury element of the claim had failed. She agreed with the reasoning in Jeffreys and Siddiqui.
As to the proper interpretation of the exception at 44.16(2)(b), Coulson LJ was in no doubt. Where a claim is not brought for damages for personal injury, it falls within the exception. That applies whether or not there is also a claim for personal injury brought within the same proceedings (31-32).
However, that only leads to the automatic falling away of costs. The judge still has a discretion (33).
Coulson LJ rejected the argument that the above interpretation inappropriately equated “proceedings” in 44.13 with “claim” in 44.16(2)(b). The argument appears to have been that 44.16(2)(b) excepts a “a claim…other than a claim to which the section applies.” 44.13 provides that the section applies to “proceedings which include a claim for damages” for personal injury. Accordingly, the argument seems to have run, if a non-PI claim falls within proceedings that included a PI claim, then the section still applies to the non-PI claim, and so 44.16(2)(b) does not apply.
The principal argument that appears to have weighed with Coulson LJ in rejecting this was that if it were otherwise the exception would have no effect – all claims seeking some element of PI damages, regardless of how many other claims were brought concurrently, would have QOCS protection.
He appeared somewhat more tolerant of the submission that “claim” in 44.16(2)(b) meant “cause of action”. However, he rejected it on five grounds. First, the fundamental dishonesty exception could apply where the cause of action itself was not fundamentally dishonest (i.e. where injuries had been exaggerated). Second, a claim for PI damages does not arise from a PI cause of action. The PI element is simply a head of loss. Third, the words cause of action simply do not appear in the rules. Fourth, the previous judges had rejected the idea that divisibility or separability was a desirable concept to apply. Fifthly, that interpretation didn’t help AB in any event.
He seems to have run out of patience with the final argument, his response to which is worth quoting in full:
“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.”
The judge made several extremely important points in response to that, which were as follows:
1. Claims “consequential upon…personal injury” will be encompassed within QOCS protection – for example, claims for medication, care, loss of earnings etc. (54-55).
2. The fact that other non-PI claims (such as for vehicle damage) do not automatically have QOCS protection because of 44.16(2)(b) does not mean that QOCS should not be the starting point for those claims too:
“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.” (57)
3. The fact that this might be the general position did not mean, though, that it was a rule to be followed – flexibility was important and the tacking on of non-PI claims in order to abuse QOCS protection should be punished (58).
That was the heart of the court’s judgment. At paragraphs 61 onwards Coulson LJ went on to reject arguments that this approach was too uncertain (which he felt, although possibly true, was the natural consequence of the statutory and CPR framework) and that it would have a deterrent effect (which he rejected as not being sensible, given that it amounted to a proposition that the fact that a judge had discretion over costs at the end of a normal non-PI claim was a deterrent against litigation).
Practitioners, particularly those acting on behalf of Claimants, should be alive to the actual words of paragraph 57 of the judgment, which give the judge a wide discretion and should prompt a change in practice from a more binary ‘either-or’ interpretation of the QOCS exceptions that is sometimes applied at present.