The Commissioner of Police of the Metropolis v Brown [2018] EWHC 2046 – This appeal concerns the operation of the qualified one-way costs shifting regime (known as QOCS) contained in Section II of Part 44 of the CPR.
The original claim:
The claim concerned the Metropolitan Police – with the help of Greater Manchester Police (GMP) (Defendants) – using data techniques it employs to detect crime to check on whether a police offer on sick leave had travelled to Barbados with her daughter without notifying her line manager of her whereabouts, in breach of police service procedures.
The Claimant succeeded in her claim for breaches of the Data Protection Act 1998 and the Human Rights Act 1998, and the tort of misuse of private information.
She also advanced a claim that she had sustained injury, in the form of depression. Although this claim was rejected by the Judge (HHJ Luba QC) he did accept that she had suffered distress, sufficient to warrant an award of £9,000 damages under the Data Protection Act. He ordered the Defendants to meet this liability between them.
The award provided here was however less than half of the Defendant’s Part 36 offer. Despite this HHJ Luba held that the Claimant was entitled to QOCS protection as she had pursued a personal injury claim which he stated was linked directly to the non-PI claims.
When ruling on costs HHJ Luba ordered the Defendants to pay 70% of the Claimant’s costs up to the date of their Part 36 offers, and for the Claimant to pay the Defendants’ costs thereafter. However of course the Defendants were only able to enforce the costs orders in their favour to the extent of the award – they could not seek to set off the costs owed by the Claimant against their own costs liability to the Claimant.
The Appeal
The Defendants sought to appeal this decision on the basis that HHJ Luba was incorrect to order that QOCS automatically applied to the claim because it included a personal injury element, seeking an exemption here under CPR 44.16(2)(b) on the basis that this was a ‘mixed claim’ with both personal injury, and non-personal injury components. In this instance the Court has discretion as to if and how to enforce an Order for costs against the Claimant.
The Judgment
The appeal was heard by Mrs Justice Whipple, who ruled in favour of the Defendant.
It was specifically noted that where there was a claim for damages for personal injuries as well as for something else – the rule was clear that “the mechanism is quite simply to leave it to the court at the end of the case to decide whether, and if so to what extent, it is just to permit enforcement of a defendant’s costs order”.
She continued: “In this way, the infinite variety of mixed claims can be dealt with fairly and flexibly, according to the justice of the case. Read in this way, the provision is entirely consistent with the overriding objective.”
Of key importance here was that it was noted that there was no necessity to “to delve into whether there are separate causes of action or remedies claimed”. Nor was it considered important that the personal injury claim was ‘inseverable’ from the other elements of the claim. Quite simply, this remained a mixed claim.
When addressed as to the importance of QOCS in providing wider access to justice, the appeal judge made reference to the intention of QOCS, which was not to address access to justice issues but rather to address the more specific issue of high insurance premiums that Claimants were having to take out to protect themselves against adverse costs, which were serving only to increase the costs of personal injury litigation.
In summary
Because the Claimant had advanced claims within the proceedings other than a claim for damages for personal injury, her case did come within the exception at CPR 44.16(2)(b). In consequence, the Judge does have a discretion to permit enforcement of the defendant’s costs order, to the extent he considers it just.
This matter now awaits a hearing in September 2018 when it will be considered whether enforcement will be appropriate here. Clearly this case provides stark warning that an element of personal injury claim will not necessarily provide full and automatic QOCS protection where the matter is ‘mixed’ with other ‘non-PI’ elements of the claim.