Edwin Afriyie v The Commissioner of Police for the City of London
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Hill,Mrs Justice Hill DBE |
| Judgment Date | 28 July 2023 |
| Neutral Citation | [2023] EWHC 1974 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2020-004224 |
[2023] EWHC 1974 (KB)
Mrs Justice Hill DBE
Case No: QB-2020-004224
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
David Hughes (instructed by Donoghue Solicitors) for the Claimant
Mark Ley-Morgan (instructed by Weightmans LLP) for the Defendant
Written submissions: 30 June and 4 July 2023
Approved Judgment
This judgment was handed down remotely at 2:00 pm on 28/07/23 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
By a judgment handed down on 30 June 2023 at [2023] EWHC 1632 (KB) (“the liability judgment”) the Claimant's claims for assault, battery and misfeasance in public office were dismissed after a trial. The Defendant's argument that had the claims succeeded they should have been dismissed in any event under the Criminal Justice and Courts Act 2015, s.57 due to the Claimant's fundamental dishonesty was rejected. It is now necessary to resolve the costs issues between the parties. These issues were addressed in helpful written submissions from both counsel.
The issues
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.
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).
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.
The nature of the Claimant's claims
The Claimant brought claims of assault, battery and misfeasance in public office. All of his claims arose out of an incident on 7 April 2018 in which he had been “tasered” by one of the Defendant's officers, falling to the ground and hitting his head, and handcuffed.
The legal framework
The relevant legal principles were recently set out in ABC & Ors v Derbyshire County Council & Anor [2023] EWHC 986 (KB) at [22]–[36], to which I refer.
The key principles for the purposes of this case are as follows.
CPR r 44.16(2)(b) makes provision for “mixed claims”, namely where “a claim is made for the benefit of the claimant other than a claim to which this Section applies.”
In Brown v Commission of the Police of the Metropolis [2019] EWCA Civ 1724; [2020] 1 WLR 1257 at [31], Coulson LJ (with whom David Richards LJ and McCombe LJ agreed) held that “…if the proceedings also involve claims made by the claimant which are not claims for damages for personal injury…then the exception in r 44.16(2)(b) will apply”.
Under the CPR r 44.16(2) exception, “[o]rders 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”.
In Brown, Coulson LJ considered the meaning of claims in respect of personal injuries, as follows:
“54. The starting point is that QOCS protection only applies to claims in respect of personal injuries. What is encompassed by such claims? It seems to me that such claims will include, not only the damages due as a result of pain and suffering, but also things like the cost of medical treatment…I consider that a claim for damages for personal injury will also encompass all other claims consequential upon that personal injury. They will include, for example, a claim for lost earnings as a result of the injury and the consequential time off work.
55. In other words, a claim for damages in respect of personal injury is not limited to damages for pain and suffering…”.
At [56] he accepted that in personal injury proceedings, another common claim will often be for damage to property. He gave the example of road traffic accident litigation where there will usually be a claim for the cost of repairs to the original vehicle and the cost of alternative vehicle hire until those repairs are effected. He noted that such claims are not consequential or dependent on the incurring of a physical injury. They are consequent upon damage to property, namely the vehicle that suffered the accident, and therefore they fall within the mixed claim exception in CPR r 44.16(2)(b).
However, at [57] he found that the fact that there is a claim for damages in respect of personal injury, and a claim, for example, for damage to property “does not mean that the QOCS regime suddenly becomes irrelevant”. He continued:
“On the contrary, I consider that, when dealing with costs at the conclusion of such a case, the fact that QOCS protection would have been available for the personal injury claim will be the starting point, and possibly the finishing point too, of any exercise of the judge's discretion on costs. If… 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 the 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” [emphasis added].
At [58] he held as follows:
“It is however important that flexibility is preserved. It would be wrong in principle to conclude that all mixed claims require discretion to be exercised in favour of the claimant, because that would lead to abuse, and the regular “tacking on” of a claim for personal injury damages (regardless of the strength or weakness of the claim itself) in all sorts of other kinds of litigation, just to hide behind the QOCS protection…”.
Submissions and analysis
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.
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].
Can this fairly be described “in the round” as a personal injury case?
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”.
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...
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