The application of qualified one way costs shifting (QOCS) is now a well-established feature of the personal injury landscape. But what happens where a claimant brings a "mixed" claim ie a claim for personal injury is included in proceedings for other non-personal injury damages? Does QOCS apply in those circumstances?

A mixed claim

This issue arose in the Court of Appeal in Andrea Brown v (1) Commissioner of Police of the Metropolis (2) The Chief Constable of Greater Manchester Police [2019] EWCA Civ 1724. Here the defendants had used data techniques they employed to detect crime to check on whether a police officer on sick leave had gone on holiday without informing her line manager, in breach of procedures. The claim was for, amongst other things, breach of the Data Protection Act 1988 and the Human Rights Act 1998 but also included a claim for personal injury in the form of depression. Although the injury claim was rejected at trial, an award of £9,000 damages for distress was made under the Data Protection Act.

Failure to beat P36 offer

This award did not beat the offers that had been made by the defendants by way of Part 36 so the claimant was potentially liable for the defendants' costs from the date of expiry of their offer. She asserted that even though her claim for personal injury was unsuccessful, she was automatically protected by QOCS so was only liable for the costs up to the aggregate amount of damages awarded (£9,000).

What then was the claimant's costs position? Could she rely on QOCS protection on the grounds that her claim included a personal injury action or did the mixed nature of the claim fall outside of automatic QOCS protection?

The CPR provisions

The provisions in the CPR which allow for discretion in QOCS (ie no automatic protection) is contained in CPR r44.16(2)(b). This reads:

"(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 question then is whether mixed claims fall outside of the scope of the Section referred to. That scope is contained in CPR 44.13 which reads:

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

(a) for personal injuries…"

Therefore the discretion applies to claims which are other than claims for damages for personal injuries.

How should the CPR be applied?

How then should this be applied in mixed claims which include a claim for personal injury?

At trial the judge considered the relevant sections and granted QOCS protection but this was successfully appealed by the defendants. The claimant then appealed to the Court of Appeal. The issue before the Court was whether the claimant was entitled to automatic QOCS protection or whether it had discretion to disapply it under CPR r.44.16(2)(b). The appeal was dismissed.

Court of Appeal guidelines

The Court of Appeal concluded that:

  • CPR 44.16(2) applied to any proceedings made for personal injury which included a claim for something else (a mixed claim). In doing so it effectively inserted the words "the proceedings include" at the start of 44.16(2)(b)
  • Automatic QOCS protection would apply in claims for "ordinary" personal injury where other heads of loss are included that are consequential upon the injury (ie loss of earnings or care and assistance)
  • However, a claim for personal injury which includes damage to property (such as car repairs and credit hire) was not consequential on the incurring of physical injury so fell within the mixed cost exception
  • In those cases QOCS protection should be the starting point for the judge when exercising their discretion and unless there were "exceptional features" such as gross exaggeration then a "costs neutral" result would be expected from the discretion (ie the claimant would usually have QOCS protection).

What is on the horizon for 2020?

The Court of Appeal has sought to provide guidance in an area where there is considerable ambiguity. However in doing so it may have clouded the issue further. The default position for defendants in the past has been that where a claim included personal injury then QOCS would apply. Costs could only be recovered up to the total of any damages awarded. However, that may not be the case where vehicle damage or credit hire claims form a substantial part of the claim. In these cases there is the possibility that the claims will fall witin the mixed exception when they contain exceptional features such as the exaggeration of a credit hire claim. Given the sums at stake, further satellite litigation can be expected going forward.