The High Court has held in Commissioner of Police of the Metropolis v Brown [2018] EWHC 2046 (Admin) that qualified one-way costs shifting (‘QOCS’) protection does not apply automatically in proceedings where a claimant is advancing both a claim for damages for personal injury and a claim other than a claim for damages for personal injury (a ‘mixed claim’).

By way of reminder, the QOCS regime is contained at CPR 44.13-44.17. Notably, CPR 44.16 provides exceptions that permit a defendant to enforce a costs order with the permission of the court. The third exception, at CPR 44.16(2)(b), is as follows:

(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

(b) a claim is made for the benefit of the claimant other than a claim to which this Section [i.e. the QOCS regime] applies.

Ms Andrea Brown, a former officer, brought a claim against the Commissioner of Police of the Metropolis and the Chief Constable of Greater Manchester Police. She pursued four causes of action: (1) breaches of the Data Protection Act 1998 (‘DPA’), (2) breaches of the Human Rights Act 1998 (‘HRA’), (3) misfeasance in public office and (4) the tort of misuse of private information. She advanced a claim that she had sustained personal injury, namely depression.

In his ‘Judgment on Remedies’, HHJ Luba QC held that Ms Brown had not suffered personal injury by way of a recognised psychiatric condition but she had suffered distress, sufficient to warrant an award of damages under s 13(2) DPA. He awarded her £9,000 by way of a single, global award of general damages to reflect her success in causes of action (1), (2) and (4). This was less than the Commissioner’s Part 36 offer and was equal to the Chief Constable’s Part 36 offer.

The issue of costs then came before the judge, who decided that QOCS applied, automatically, to protect Ms Brown against any adverse costs order which might be made against her in the police’s favour. His reason for doing so was that her claim included a claim for damages for personal injury which related to all the various parts of her claim, so that he had no discretion to disapply QOCS protection.

The two defendants appealed on the basis that such ‘automatic’ QOCS protection was erroneous in law in a ‘mixed claim’ such as Ms Brown’s, i.e. one which included a claim other than a claim for damages for personal injury. Ms Brown’s response was that the QOCS regime applies not just to a claim for personal injuries but to any proceedings in which there is a claim for damages for personal injuries.

The Equality and Human Rights Commission (‘EHRC’) intervened and asserted the position that QOCS should be construed so as to provide certainty for claimants making personal injury claims that they will not be subject to adverse costs orders, even if ultimately unsuccessful, subject only to narrow exceptions.

Whipple J allowed the appeal and held that CPR 44.16(2) ‘applies in any proceedings where a claim has been made for damages for personal injuries as well as for something else (i.e. as well as a claim other than a claim for damages for personal injury). This is a “mixed claim”’ (at [49]). Since Ms Brown had advanced such a ‘mixed claim’, her case did come within the exception at CPR 44.16(2)(b). This meant that HHJ Luba QC did have a discretion to permit enforcement of costs orders against Ms Brown, to the extent he considered it just.

Noting that the QOCS regime ‘was not intended to address wider issues of access to justice’ and that this would go ‘far beyond [the regime’s] intended purpose’, Whipple J rejected the EHRC’s proposition that a claim for personal injury means any proceedings which include a claim for personal injury (at [58]-[59]). Whilst it is ‘imperfect’ that claimants in ‘mixed claims’ do not have the certainty of QOCS protection at the outset, there are many other personal injury claims that are not ‘mixed claims’ and in which no such uncertainty arises (at [60]). Moreover, the consequence of this decision is that ‘the infinite variety of mixed claims can be dealt with fairly and flexibly, according to the justice of the case. Read in this way, the provision [CPR 44.16(2)(b)] is entirely consistent with the overriding objective’ (at [51]).

Finally, Whipple J remarked that ‘[i]t is no surprise that mixed cases, which are inherently more complex, are not subject to QOCS protection’ (at [60]). Whilst this conclusion may in fact come as an unwelcome surprise to claimants and claimant lawyers alike, police forces around the country will no doubt be pleased that the position in respect of QOCS in ‘mixed claims’ is less rigid than HHJ Luba QC’s judgment suggested at first instance.