Munira Pathan v Commissioner of Police of The Metropolis
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bourne |
| Judgment Date | 16 December 2022 |
| Neutral Citation | [2022] EWHC 3244 (KB) |
| Docket Number | Case No: QA-2021-000288 |
| Court | King's Bench Division |
[2022] EWHC 3244 (KB)
THE HON. Mr Justice Bourne
Case No: QA-2021-000288
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Alex Bennie (instructed by Edwards Duthie Shamash) for the Appellant
Robert Talalay (instructed by Plexus Law) for the Respondent
Hearing date: Thursday 24 November 2022
Approved Judgment
This judgment was handed down remotely at 10am on 16 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This appeal against an order made by HHJ Saunders on 2 December 2021 concerns “qualified one way costs shifting” (“QOCS”) under CPR Part 44. The respondent also applies for permission to cross-appeal against another part of the judge's order relating to costs. By agreement between the parties, I am invited to decide that cross-appeal if I grant permission for it.
The appellant was the claimant below. On 13 December 2017 she was arrested by police officers and then detained at a police station for 12 hours. In due course she was released and the police took no further action against her. On 3 May 2019 she issued a claim form, drafted by her husband and signed by both of them, alleging that her arrest and detention were unlawful. The particulars of claim said that she suffered high blood pressure and felt faint while in detention and that she “has suffered loss and damage”, but she did not indicate that she was making a claim for damages for personal injuries.
A defence was served on 18 June 2019, denying that the police had acted unlawfully. At paragraph 15 it stated: “In the event that the Claimant is seeking damages for personal injury, the Defendant will aver that any such claim ought to be struck out for non-compliance with the pre-action protocol, CPR 16.4 in Practice Direction 16. The claim form did not comply with the rules for personal injury claims, in particular because it did not give details of any injury or annexe a medical report.
At a CCMC on 18 August 2020, the court heard an application on behalf of the appellant, now with legal representation, for permission to amend her claim. The court considered draft amended particulars of claim containing a number of changes. One of these was a paragraph under particulars of loss and damage, claiming that she had suffered a psychiatric injury. That claim was supported by a report from a GP. At the hearing, the judge took the view that this was not sufficient and that a report by a psychiatrist would be needed. Some amendments were allowed, but the amendment to introduce the personal injury claim was not. However, the appellant was given permission to make a further application to allow the amendment introducing a personal injury claim if so advised.
On 26 November 2020 she made a further application, serving amended particulars of claim which again contended that her arrest and detention had precipitated “a depressive disorder associated with anxiety” and now attaching a report from a consultant psychiatrist. Her renewed application to amend was opposed by the respondent because the claim was listed for trial starting on 22 February 2021 and this date would be lost if the amendment was permitted.
At a further hearing on 22 January 2021, HH Judge Roberts granted permission for the amendment and vacated the trial date.
By an amended defence served on 11 February 2021, the respondent neither admitted nor denied the claim for personal injury but put the appellant to proof. In due course the respondent instructed a psychiatric expert. That expert confirmed that the appellant had some psychiatric issues but there were some differences of opinion on diagnosis. Without overtly disputing causation, the respondent's expert appeared to express some scepticism about causation of the appellant's continuing illness.
The trial took place at Central London County Court between 30 November 2021 and 2 December 2021. Much of one day was occupied by the evidence of the expert psychiatrists. The defendant's two lay witnesses gave evidence on liability only. The claimant gave evidence on liability and quantum and submissions were made on liability and quantum.
Judge Saunders ruled that the arrest and detention were lawful, and therefore the claim failed in its entirety. He therefore did not decide causation of loss or quantum. The judge then heard submissions on costs. He decided that these would follow the event, in other words the claimant would be ordered to pay the defendant's costs, subject to the effect of QOCS. As to that, the judge said:
“86. QOCS would normally apply to a personal injury case and I am grateful to the parties for showing me the case of Brown v Commissioner of the Police of the Metropolis [2019] EWCA 1724, which is the leading authority on the question of disapplication of QOCS in certain circumstances.
87. My view is that up until the date when HHJ Richard Roberts made the order allowing the claimant to amend the particulars of claim in this action, the case was simply a loss of liberty case. It was not a personal injury case. On that date, it became in my view, a personal injury case or at least a substantially enlarged portion of the case became a personal injury case.
88. In my view, the correct application of the QOCS exceptions is for me to make an order that the QOCS protection only applies to the period as from 22 January 2021. Prior to that, the QOCS protection cannot apply because it is simply not during that period, a personal injury case. I do not agree with Mr Bennie's submission that this is a retrospective application.
89. In my view, the claimant should pay the defendant's costs of the action up until 22 January 2021 on the standard basis and for the whole of the action, but as from 22 January 2021, it should be applied as subject to QOCS. In order to explain why my decision is in relation to the post-22 January period is that this case was substantially, from that date, a personal injury action. Most of the evidence I have heard during the trial, in fact nearly all was relating to the PI aspect of the claim. it clearly formed the vast majority and I think it is very difficult to strip out which part relates to loss of liberty and which part relates to personal injury because it relates all back to the same incident, namely the arrest.”
The relevant parts of the Judge's order provided:
“3. The Defendant is permitted to enforce 100% of her costs … incurred up to 22 January 2021.
4. The Defendant may not enforce her costs … incurred subsequent to 22 January 2021 without further Order of the Court.”
By the appeal, the appellant contends that the judge was wrong to decide that QOCS did not apply to costs incurred up to 21 January 2021. By the cross-appeal, the respondent contends that the judge erred by not permitting the enforcement of the order relating to costs incurred after that date.
The law
The relevant provisions of the CPR relating to QOCS are as follows:
“ 44.13
(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 Courts Act 1984 (applications for pre-action disclosure), or where rule 44.17 applies.
(2) In this Section, ‘claimant’ means a person bringing a claim to which this Section applies or an estate on behalf of which such a claim is brought, and includes a person making a counterclaim or an additional claim.
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 is considers just, where—
(a) the proceedings include a claim where which is made for the financial benefit of a person other than the claimant or a dependant within the meaning of section 1(3) of the Fatal Accidents Act 1979 (other than a claim in respect of the gratuitous provision of care, earnings paid by an employer or medical expenses); or
(b) a claim made for the benefit of the...
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