QOCS and the Enforcement of Costs in a Mixed Claim: A Shift in Focus

The decision of Mrs Justice Hill DBE in Afriyie v Commissioner of Police for the City of London (Re Costs) [2023] EWHC 1974 (KB) offers a fresh perspective on how to determine the thorny issue of whether a claim ‘can fairly be described in the round as a personal injury case’ (see the comments of Lord Justice Coulson in Brown v Commission of the Police of the Metropolis [2019] EWCA Civ 1724 at [57] on this very issue).

This matters enormously. The well-known effect of QOCS is that, in a claim for damages arising from personal injury suffered, a claimant is protected from the effects of adverse costs beyond the extent of any award for damages: if no damages are awarded, then there can be no enforcement of costs.

What is on the face of it an arbitrary principle becomes anything but when dealing with ‘mixed claims’ – in other words, proceedings which involve – but not exclusively so – a claim for damages for personal injury. Thus Coulson LJ (with whom Richards LJ and McCombe LJ agreed) held at [31] 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’.

Background

The Defendant in Afriyie was wholly unsuccessful in bringing an action against the police for damages arising from personal injury – but also misfeasance in public office; the Defendant was awarded her costs and the Claimant was awarded £0 damages: therefore any enforcement of adverse costs could only have been made against him personally. It was agreed between the parties that this was – by virtue of the claim for damages for misfeasance in public office – a ‘mixed claim’ for the purposes of CPR r. 44.16(2)(b) and, as such, the Defendant sought permission to enforce her costs accordingly –

(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 Defendant sought permission to enforce against the Claimant the order for costs to the level of 25% of costs awarded. The Claimant resisted enforcement to any extent. The first question for Hill J was whether the proceedings could fairly be described ‘in the round’ as a personal injury case. If that was to be answered in the affirmative, then the second question to be asked was whether there were any ‘exceptional features’ of the non-personal injury claims for damages.

Could these proceedings be fairly described in the round as a personal injury case?

It was argued by the Defendant that QOCS should not apply to protect the Claimant for reason that he had brought a claim for misfeasance in public office, which was something other than a claim for damages for personal injuries. The Court answered this by emphasising the important and fundamental distinction between causes of action and claims for damages; that the two were not the same at all. To conflate these two concepts was to misplace the emphasis on when QOCS should (or should not) apply in a mixed claim. Referring again to Brown, Hill J stated that:

‘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 of action, observing at [46] that:

"[A] claim for damages for personal injury is not a cause of action at all. A cause of action is, for example, a breach of duty or a claim under a statute. A claim for damages in respect of personal injury is a claim for a particular head of loss arising out of the breach or misconduct of the defendant. The two are not the same at all."

I consider that the same approach should be taken when considering whether a claim is, in the round, one for personal injuries. On that basis, the fact that one of the Claimant's causes of action was a claim for misfeasance is of limited assistance in determining whether his claim was, in the round, a personal injury claim.

Having shifted the focus away from analysing the various causes of action which may constitute a single set of proceedings and instead focussing on the type of damages sought by a complainant, Hill J found that this was, in the round, a personal injury claim by reference to the following –

• Of the five types of damages sought only two were for damages for personal injuries (both general damages and those special damages which related to medical appointments and treatment)
• The residual and modest claim for special damages was ‘consequent upon damage to property (and so not in respect of personal injuries)
• A third type of basic damages did not relate to personal injury; however they too were modest and it was accepted as being unlikely that ‘the case would have been litigated if this was the extent of the Claimant’s claim’
• Whilst the aggravated and exemplary damages also did not relate to personal injury, and were significant, the grounds on which those damages were sought ‘all flowed from the actions of the Defendant [which] caused the [the Claimant] personal injury’.

Having then reminding herself that, as enunciated by Coulson LJ in Brown at [57]: ‘[T]he “starting point" for the exercise of the discretion is that QOCS protection would have been available for the personal injury claim, and it is expected that a 'cost neutral' result would be achieved through the exercise of the discretion unless there are "exceptional features” of the non-personal injury claims’, Hill J went onto consider whether there were, in this case, any such features.

Were there any exceptional features of the non-personal injury claims?

In finding that there were no exceptional features of the non-personal injury claims for damages in the proceedings – such that QOCS protection would have been disapplied in order to allow the Defendant to enforce the order for costs against the Claimant personally – Hill J made the following points (as summarised) –

• Failure to accept / the rejection of offers – in this case three non-Part 36 offers – was not exceptional; here the offer was to settle on a ‘drop hands’ basis, which would have avoided the need for a trial and the costs associated therewith
• The Claimant’s conduct reflected little more ‘than the usual incidences of litigation’ and was therefore unexceptional
• The Defendant did not succeed on all points in her defence – namely, those relating fundamental dishonesty
• The fact that the Claimant was found to have caused, or at least contributed to, the accident does not mean that it was wrong to litigate the claim

Having determined that, firstly, the proceedings could, ‘in the round’, be fairly described as a personal injury case (i.e. a claim for damages for personal injury pursuant to CPR r. 44.13(1)); and secondly, that there were no exceptional features of the non-personal injury claims within those proceedings, QOCS intervened to protect the Claimant from the enforcement of adverse costs by the Defendant.

Conclusion

The main point to be taken from Afriyie is a simple but useful one: to answer the question of whether an unsuccessful claimant in a ‘mixed claim’ (as defined by CPR r. 4416(2)(b)) will be able to avail himself of QOCS protection requires a far greater degree of focus to be placed on the type of damages being claimed in the proceedings than it does upon the causes of action which constitute those proceedings. If, in the round, the case looks more like a personal injury case than it does a non-personal injury case, then it will be necessary to consider whether there are any exceptional features of the non-personal injury claim(s) for damages. If not, then in cases like Afriyie where adverse costs exceed the damages awarded, QOCS should intervene to achieve a costs neutral result for the Claimant.

But if, either, the mixed claim is not, in the round, a personal injury case, or, if it is considered a personal injury case but exceptional features are found to apply to the non-personal injury claim(s) within those proceedings, then a court may grant permission for any costs award made against a Claimant to be ‘enforced up to the full extent [and] to the extent that it considers just’ (CPR r. 44.16(2) refers).

Please contact Christopher McClure to discuss any query relating to this article. Christopher is based at our Manchester office and can be contacted on 0161 835 4087.