Faiz Siddiqui v The Chancellor, Masters and Scholars of the University of Oxford

RULING

Introduction

The substantive judgment in this case was handed down on 7 February 2018: see [2018] EWHC 184 (QB). There are two consequential issues arising from the judgment: first, the question of costs; second, the Claimant's application for permission to appeal.

I have, as requested at the time the judgment was handed down, received written submissions from both parties on these two issues. I will deal with each separately.

Costs

The Claimant failed in his claim. The parties are agreed that the Defendant is, in those circumstances, entitled to a costs order in its favour, save in relation to the costs of certain discrete issues where orders have already been made (including in relation to the Defendant's unsuccessful application to have the claim struck out). However, there is disagreement about the enforceability of the order for costs.

The disagreement arises in the context of the Qualified One Way Costs Shifting (‘QOCS’) rules that apply to personal injuries claims. It is agreed between the parties that the rules do apply to the present case, but the disagreement is as to whether an exception to the general rule (namely, that a claimant is protected from an adverse costs order in the event that his claim fails) applies in this case. The Claimant's position is that the costs order should not be enforceable because this is a personal injuries claim. The Defendant accepts that these proceedings fall within the QOCS provisions of CPR r.44, but it submits that the costs order should be enforceable pursuant to CPR r.44.16(2)(b), at least to a significant extent even if not to the whole amount of its costs, said to be approximately £300,000.

The background to the QOCS provisions was summarised by Lewison LJ in Howe v Motor Insurers' Bureau (No 2) [2018] 1 WLR 923 as follows at [11]:

“… The origins of QOCS lie in Sir Rupert Jackson's Review of Civil Litigation Costs (2010). Chapter 19 of the report dealt with one-way costs shifting in the context of personal injuries litigation which, Sir Rupert said, he was treating as “a broad concept”. Once after the event (“ATE”) insurance premiums ceased to be recoverable it was necessary to protect claimants from the risk of adverse costs orders obtained by insured or self-insured parties with deep pockets. His proposal was that all claimants in personal injury cases be given a broadly similar degree of protection against adverse costs orders as that enjoyed by legally aided claimants. Plainly, this recommendation was designed to protect claimants who lost their cases, as successful claimants would not be liable to pay an unsuccessful defendant's costs. It was intended to overcome the deterrent effect on bringing claims for personal injury of the risk of paying a defendant's costs if the claim failed. Although the broad thrust of Sir Rupert's recommendation was accepted, the eventual scheme embodied in the Civil Procedure Rules did not follow the legal aid model. … it is much more prescriptive than the broader more discretionary approach that Sir Rupert recommended.”

The relevant rules are as follows:

“ 44.13

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

(a) for personal injuries;

…

(2) In this Section, ‘claimant’ means a person bringing a claim to which this Section applies …

44.14

(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.

(2) Orders for costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.

(3) An order for costs which is enforced only to the extent permitted by paragraph (1) shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record.

44.15 Orders for costs made against the claimant may be enforced to the full extent of such orders without the permission of the court where the proceedings have been struck out on the grounds that —

(a) the claimant has disclosed no reasonable grounds for bringing the proceedings;

(b) the proceedings are an abuse of the court's process; or

(c) the conduct of —

(i) the claimant; or

(ii) a person acting on the claimant's behalf and with the claimant's knowledge of such conduct,

is likely to obstruct the just disposal of the proceedings.

44.16

(1) Orders for costs made against the claimant may be enforced to the full extent of such orders with the permission of the court where the claim is found on the balance of probabilities to be fundamentally dishonest.

(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 —

(a) … or

(b) a claim is made for the benefit of the claimant other than a claim to which this Section applies ….”

The drafting of these provisions has been the subject of adverse comment: see, e.g., Jeffreys v The Commissioner of Police for the Metropolis [2017] 4 Costs L.O. 409 at [35–36]. Nonetheless, those provisions were the subject of detailed scrutiny by Morris J in that case and given a purposive construction. Mr Mallalieu, on behalf of the Claimant, indicates that the analysis in Jeffreys is not accepted.

Whilst the analysis is not, strictly speaking, binding upon me, ordinarily I would need to be persuaded that it is obviously wrong before departing from it. I am alive to the objectives of the QOCS provisions (see paragraph 5 above) and the need to be cautious about disturbing those objectives too readily by looking for an exception where an exception was not intended. However, as a matter of construction of the rules, I respectfully think that the analysis in Jeffreys is correct and I propose to apply it to the extent that it is relevant in this case (see further at paragraphs 17–18 below). It is, I might add, also 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.

Mr Mallalieu says that the Claimant's position on this issue is simple: the claim is a personal injuries claim, having been expressly pleaded as such from the outset. It was further expressly stated to be so in the Reply to the Defendant's Defence and the nature of this case “was placed firmly at the core of his Preliminary Schedule of Loss”. The fact that it was a personal injuries claim is, he contends, clear from the fact that, when addressing the limitation issues in the case (as they applied to the whole claim), the parties treated the applicable provisions as being sections 11, 14 and 33 of the Limitation Act 1980 which only apply to claims where the damages consist of or include damages in respect of personal injuries (section 11) or actions in respect of personal injuries (section 33).

Mr Milford accepts that the claim includes “a claim for damages for personal injuries”, but says that it includes also claims in contract and tort for “straight financial loss as a result of alleged negligence” which therefore qualify as claims “made for the benefit of the claimant other than a claim to which this Section applies” within r.44.16(2)(b). He draws attention to the pleaded claim for pure financial loss in paragraphs 47–49 of the Particulars of Claim which were pleaded as follows:

“47. The Claimant's chosen career path was to pursue postgraduate qualification through an Ivy League University with a view thereafter to a career at the Commercial Bar. Whilst a (low) Upper Second degree from the University of Oxford remains a qualification of some substance, the difference between that degree and the First or high Upper Second he would or should have been awarded made and continues to make a very material, substantial and continuing difference to his ability to obtain admission to the prestigious post graduate courses he had chosen and, in turn, to his ability to pursue his career at the desired level.

48. The Claimant applied for positions at leading US law schools in 2000, 2001, 2003 and 2006. On each occasion, he was rejected. When the Claimant made enquiries as to why this was the case, he was consistently informed that his undergraduate grades and resultant class rank were not high enough to justify admission.

49. Further or alternatively, the Claimant has lost the chance of obtaining the higher degree referred to above and of the consequent substantially enhanced career path.”

This pleading does demonstrate that the case (or at least one important aspect of the case) the Claimant was proposing to advance at trial was that the low level of his degree (which was substantially caused by the poor result in the gobbets paper) caused his failure to secure a place at one of the major US Law Schools which itself led to the lost opportunity to pursue a “substantially enhanced career path”. That part of his case did not depend upon establishing some psychiatric injury following the obtaining of his lower than anticipated degree level.

That case was indeed substantially advanced at the trial. Since the trial did not address the issue of financial loss, the precise nature...