Andrea Brown v The Commissioner of Police of the Metropolis

Hearing date: 3 rd October 2019

Approved Judgment

The Issue

This appeal concerns the rules relating to Qualified One-Way Costs Shifting (“QOCS”) at CPR 44.13 – 44.16. QOCS provides automatic costs protection to a claimant with a claim for damages for personal injury, so as to ensure that, win or lose, such a claimant does not emerge from the proceedings with an adverse cost liability. In the present case, the claimant (whom I shall call ‘the appellant’) made various claims arising out of the respondents' wrongful obtaining and use of private information about her. It was what is often referred to as a ‘mixed claim’; that is to say, her claims included a claim for damages for personal injury, but also included claims for non-personal injury damages and other relief. Claims for general damages for misuse of the appellant's personal data were upheld by the trial judge, but he rejected her claim for damages for personal injury. In circumstances where the appellant failed to beat the respondents' Part 36 offer, resulting in adverse costs orders against her, the question is whether the appellant can automatically avoid the enforcement of those orders by relying on the QOCS regime, on the ground that one of her failed claims was a claim for damages for personal injury.

For the reasons set out below, I consider that an analysis of the relevant parts of the CPR, supported by the existing first instance authorities, produces a negative answer to that question. In setting out those reasons, and notwithstanding the very particular facts of this case, I have endeavoured to give some guidance as to the proper application of the QOCS regime to mixed claims.

The Background

The respondents unlawfully obtained and used private information about the appellant and her daughter. She brought claims for damages under 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. The respondents admitted liability under the DPA and the HRA. The claim for damages for breach of contract was not pursued. The claims for damages for misfeasance and misuse of private information went to trial. The claimant lost on the former but won on the latter.

HHJ Luba QC presided over the trial on liability. His ex tempore judgment was given as long ago as 30 July 2016. He rejected the claimant's claim for damages for personal injury arising out of the respondents' conduct. Specifically, he found that the claimant had not shown that her depression had been caused or materially contributed to by the respondents' wrongful actions.

This finding was also reflected in Judge Luba's written ‘Judgment on Remedy’ dated 7 October 2016. The outcome of that judgment was that the claimant was awarded general damages under the DPA and HRA, and for the misuse of private information, in the sum of £9,000, apportioned on a two thirds/one third split between the first and the second respondents. He rejected her claims for aggravated damages and exemplary damages. He also rejected the appellant's claims for declarations and erasure/destruction of information.

There were then arguments about costs. The respondents had made Part 36 offers in the total amount of £18,000. The appellant had therefore comprehensively failed to beat those offers. In consequence, Judge Luba ordered the respondents to pay 70% of the appellant's costs up to the date of the offers but ordered the appellant to pay the respondents' costs thereafter.

However, the appellant argued that, because her claims had included a claim for damages for personal injury, she was protected by the QOCS regime against any adverse costs orders in an amount higher than the £9,000 she had recovered (i.e. that the overall result of the case should be cost neutral for the appellant). In a judgment given on 24 March 2017, Judge Luba agreed. He said:

“18. As I have already indicated, pleadings against both Defendants incorporate four heads or causes of action. If any one of them does not include a claim for personal injury damages, then it might be arguable that the terms of 44.16 (2)b are met. It seems to me, however, that on a consideration of the pleaded case here, set out in the Statement of Case advanced by the claimant against each of the two defendants, what is alleged is that injury has followed as a consequence of each of the four matters that I have already recounted in this judgment …

19. It is not a case, for example, in which there has been included a separate claim for some other form of damage or loss arising in consequence of that claim alone. It seems to me in those circumstances, on the fact of these particular cases, that the exceptions in CPR 44.16 on which the defendants would seek to rely if matters came to that point, is not in fact available.”

The respondents appealed Judge Luba's decision on the basis that he had wrongly granted the appellant the automatic protection of the QOCS regime in respect of claims which were not claims for damages for personal injury.

In a detailed judgment dated 31 July 2018 ( [2018] EWHC 2046 (Admin)) Whipple J allowed the respondents' appeal. She referred to a number of authorities, including the decision of Morris J in Jeffreys v Commissioner of the Metropolis[2017] EWHC 1505 (QB), [2018] 1 WLR 3633, a case decided after Judge Luba's judgment of 24 March 2017 but on this very point. She concluded that, because this was a mixed claim, in that it included claims for damages for matters unconnected to personal injury, as well as a claim for personal injury damages, one of the express exceptions to the QOCS regime was triggered. Accordingly she held that the automatic costs protection arising from the QOCS regime fell away, although she emphasised at [50] and [51] that, even though that protection did not automatically apply, costs in a mixed claim remained a matter for the court to deal with in a fair and flexible fashion.

The appellant was granted permission to appeal to this court. In giving permission, Lewison LJ said, in relation to the underlying principle, that the application of the QOCS regime to mixed claims was one of considerable importance and that “clarity is essential”. However, the financial consequences of this appeal are much less apparent. Ms Darwin, on behalf of the appellant, said in her opening remarks that the appellant faced a bill of £100,000 if she lost the appeal. This figure was not apparent from the papers and the court sought more information from the parties as to what was at stake. Lord Faulks QC produced a post-hearing note which showed that, on the respondents' figures, the amount was much lower. The appellant's solicitors responded with not one but two further recasts of the figures, each different, which at least demonstrated that the £100,000 had been over-stated. It is surprising that the parties were not able to agree, even after the hearing, what the appeal was actually worth in monetary terms.

The QOCS Regime

The QOCS regime originated in the Jackson Review of Civil Litigation Costs, and Sir Rupert's observation in chapter 9 of his Final Report that “in personal injuries litigation it must be accepted that claimants require protection against adverse costs orders. Otherwise injured persons may be deterred from bringing claims for compensation” (paragraph 5.8). In chapter 19 (paragraph 1.1), Sir Rupert said that he was treating personal injuries litigation “as a broad concept, including claims where the claimant's injuries were caused by clinical negligence”. There is no further explanation or exposition of what was intended to be covered by the expression ‘personal injuries litigation’.

Further on in chapter 19, Sir Rupert noted that s.11(1) of the Access to Justice Act 1999 operated “as something very close to complete immunity from costs liability”. He proposed a new rule “that all claimants in personal injury cases, whether or not legally aided, be given a broadly similar degree of protection against adverse costs”. The wording of his proposed rule was, he said, designed to put parties “who are in an asymmetric relationship onto a more equal footing. It ensures that a party is not denied access to justice because of the prospect of incurring liability for adverse costs beyond its means” (paragraph 4.9). It is, however, to be noted that Sir Rupert's proposed wording was not adopted by the Civil Procedure Rules Committee and the relevant rules are in a different form.

The QOCS regime is set out at CPR 44.13 – 44. 16. CPR 44.13 sets out those proceedings to which the QOCS regime applies:

“(1) This Section applies to proceedings which include a claim for damages –

(a) for personal injuries;

(b) under the Fatal Accidents Act 1976; or

(c) which arises out of death or personal injury and survives for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934,

but does not apply to applications pursuant to section 33 of the Senior Courts Act 1981 or section 52 of the County...