The Commissioner of Police of the Metropolis v Andrea Brown
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Whipple |
| Judgment Date | 31 July 2018 |
| Neutral Citation | [2018] EWHC 2471 (QB) |
| Date | 31 July 2018 |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2017/0101 |
[2018] EWHC 2471 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Whipple DBE
Case No: QB/2017/0101
QB/2017/0206
and
Mr Adam Clemens (instructed by Weightmans LLP) for the First Appellant and Defendant
Ms Charlotte Ventham (instructed by Clyde & Co LLP) for the Second Appellant and Defendant
Ms Claire Darwin and Mr Paul Skinner (instructed by Thomas Mansfield Solicitors Ltd) for the Respondent and Claimant
Ms Nathalie Lieven QC and Mr Raj Desai (instructed by The Equality and Human Rights Commission) for the Intervener
Hearing dates: 4 th July 2018
Judgment Approved
INTRODUCTION
This is an appeal against a judgment given by HHJ Luba QC on 24 March 2017 in relation to one aspect of the costs of an action brought by Ms Andrea Brown, the Claimant in the underlying action and the Respondent to the current appeal, against two Defendants, both of whom are now the Appellants: the Commissioner of Police of the Metropolis and the Chief Constable of Greater Manchester Police. It is easier if I simply refer to the parties as Ms Brown, the Met and the GMP, and the “Police” to describe the two Appellants together. The appeal concerns the operation of the qualified one-way costs shifting regime (known as “QOCS”) contained in Section II of Part 44 of the Civil Procedure Rules (“CPR”). The Judge 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. The Judge's reason for doing so, in summary, 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 Police argue that the Judge erred in law in construing CPR Part 44 so as to confer “automatic” QOCS protection on Ms Brown. The Police argue that her claim was for much more beyond damages for personal injury and that the mixed nature of Ms Brown's claim meant that QOCS protection was not automatic, but was subject to the Judge's discretion.
Unsurprisingly, Ms Brown rejects the challenge and supports the Judge's conclusion, for the reasons he gave as well as for other reasons.
Ms Brown is supported by the Equality and Human Rights Commission which intervenes. It argues that QOCS should be broadly construed to promote access to justice and achieve the aims of the CPR and of the QOCS regime, specifically.
BACKGROUND FACTS
The background is set out in two judgments of HHJ Luba QC which are before me. (There was a third ex tempore judgment on liability which I have not been shown.) The “Judgment on Remedy” is dated 7 October 2016. It states that Ms Brown was a serving officer in the Met until November 2013. In December 2011, while employed but on sick leave, she had travelled to Barbados with her daughter without notifying her line manager of her whereabouts. This was a breach of police service procedures as to absence management. As part or preparatory work for possible later disciplinary proceedings against her, the Met submitted a request for information to the National Border Targeting Centre (NBTC) the police arm of which is managed by the GMP. The GMP responded by email giving the Met information about Ms Brown's trip to and from Barbados, attaching a copy of her passport and a print-out containing other information about her recent travel arrangements and passport details.
The Met then approached Virgin Atlantic, the relevant carrier. It asked for information using a “Personal Data Request Form”. The airline responded by email with details of the flight, passenger names (Ms Brown travelled with her daughter) and other details; a copy of the booking form was attached.
That information was used against Ms Brown in the disciplinary process which culminated in a finding that she had a case to answer but that a sufficient sanction would be “informal management action”.
Ms Brown then sued the Police. She claimed that they had misused facilities at their disposal for gathering data and information, which facilities existed for the purpose of detecting and preventing crime, and did not permit the requests or disclosures in this case.
Ms Brown 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. The Police conceded (1) and (2). Ms Brown lost on (3). Ms Brown won on (4).
As part of her case on (1), (2), (3) and (4), Ms Brown advanced a claim that she had sustained personal injury, in the form of depression. But the Judge rejected that claim. He held that she had not suffered personal injury in the form of any recognised psychiatric injury, and that in any event the breaches of the DPA did not cause or materially contribute to any such injury as she might have been able to establish. The Judge did accept that she had suffered distress, sufficient to warrant an award of damages under s 13(2) DPA.
In the Judgment on Remedies, the Judge rejected her claim for aggravated and exemplary damages and made a single global award of general (compensatory) damages to reflect the three causes of action on which she had succeeded. He awarded her £9,000. He apportioned the aggregate amount of the orders for damages and interest made in the Respondent's favour two-thirds / one-third between the Met and GMP respectively.
The award was less than Part 36 Offer made by the Met on 26 February 2016, and equalled the Part 36 offer made by the GMP on 2 May 2016.
It was against this background that the issue of costs came before the Judge. He held that Ms Brown was entitled to QOCS protection.
The Judge was subsequently invited to rule on costs, on the assumption that he was wrong about QOCS protection and that the exception did apply (it appears that this followed the order of Warby J dated 15 November 2017 granting permission, but staying the appeal until after the determination of whether there should be a Defendant's costs order, which he considered necessary in advance of the appeal to ensure the appeal was not academic). By order dated 22 January 2018, the Judge ordered the Met and the GMP to pay 70% of Ms Brown's costs up to the date of their respective Part 36 offers; thereafter, he ordered Ms Brown to pay the costs of each of the Met and the GMP.
As matters stand, the Police will be able to enforce the costs orders in their favour only to the extent of the award. The Police will not be able to set off the costs owed by Ms Brown to them against costs owed by them to Ms Brown; the costs owed by them to Ms Brown will still have to be paid. The Police will not be able to pursue Ms Brown personally for any costs due to them. The Police will be substantially out of pocket.
On the other hand, if this appeal is allowed, then, subject to the Judge's further decision about whether to exercise his discretion or not, the Police will not only be able to enforce against the award, but they will also be able to set off the cross costs orders against each other, and they will be able to sue Ms Brown personally for any outstanding balance due to them.
QOCS
The QOCS regime is contained in the CPR, which is subordinate legislation enacted pursuant to the Civil Procedure Act 1997. They are at CPR 44.13–44.17.
CPR 44.13 provides, so far as relevant:
(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,
…
The term “claim for personal injuries” is defined at CPR 2.3 as follows:
“‘claim for personal injuries’ means proceedings in which there is a claim for damages in respect of personal injuries to the claimant or any other person or in respect of a person's death and ‘personal injuries’ includes any disease and any impairment of a person's physical or mental condition”.
CPR 44.15 sets out the effect of QOCS, which is that orders for costs made against a claimant may be enforced without permission of the Court only to the extent of any orders for damages and interest made in favour of the claimant. A claimant is protected against any greater liability for the defendant's costs (this is “QOCS protection”).
There are exceptions to the general rule set out in CPR 44.13(1). Some of them are set out at CPR 44.15, which provides an exception for proceedings which are struck out for misconduct. If that exception applies, any defendant's costs order is enforceable to the full extent without the Court's permission.
CPR 44.16 provides further exceptions, which permit a defendant to enforce a costs order with the permission of the Court. The first of those relates to dishonesty ( CPR 44.16(1)). The second relates to proceedings which are made for the financial benefit of a third person ( CPR 44.16(2)(a)). The third is relevant in this case:
(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 applies.
The Practice Direction to Part 44 states as follows at paragraph...
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