Brown v Commissioner of Police of the Metropolis & Anor

Where proceedings contain both a claim for damages for personal injury and a claim for another type of loss, the mixed-claim exception in rule 44.16(2)(b) of the Civil Procedure Rules 1998 applies. The claimant does not retain automatic QOCS protection for the whole action.

The court must instead decide whether, and to what extent, enforcement of an adverse costs order is just. A personal-injury claim includes losses consequential upon the injury, such as lost earnings and medical care. A property-damage claim is different where it does not depend upon personal injury. In an ordinary personal-injury action, the court’s discretionary approach should ordinarily preserve the practical benefit of QOCS unless the non-personal-injury element justifies a different result.

The appellant brought claims arising from the respondents’ unlawful obtaining and use of private information concerning her and her daughter. She succeeded in claims under the Data Protection Act 1998, the Human Rights Act 1998 and for misuse of private information, recovering £9,000. Her claim that the conduct caused or materially contributed to depression failed.

Having failed to beat the respondents’ Part 36 offers, she was ordered to pay their post-offer costs. HHJ Luba QC held that QOCS prevented enforcement beyond her damages because each pleaded cause of action included personal-injury damages. Whipple J allowed the respondents’ appeal in [2018] EWHC 2046 (Admin).

The central issue was whether a claimant in a mixed claim obtains automatic QOCS protection merely because one claim seeks damages for personal injury.

1. Appeal dismissed. The court unanimously upheld Whipple J’s conclusion that the appellant’s claim fell within the mixed-claim exception in rule 44.16(2)(b) of the Civil Procedure Rules 1998.

2. Rule 44.13 creates a broad QOCS gateway for proceedings containing a personal-injury claim. Rule 44.16(2)(b) then applies where the claimant also advances a claim for loss other than personal injury. The exception removes the automatic protection otherwise provided by rule 44.14. It leaves the court with a discretion, exercisable with permission and to the extent just, over enforcement of adverse costs orders.

3. The appellant’s proposed construction would make rule 44.16(2)(b) redundant. The term “claim” in that provision does not mean a cause of action. A personal-injury claim is a head of loss, whereas a cause of action is the breach of duty or statutory wrong from which loss is claimed. The inquiry is whether different types of loss are claimed, not whether they arise from separate facts, breaches, or divisible causes of action.

4. The appellant had freestanding and successful claims for data-protection, human-rights and privacy-related losses. Those claims did not depend on proving personal injury. They were therefore claims other than claims for damages for personal injury, even though she also alleged personal injury arising from the same conduct.

5. The court gave guidance, not necessary to the result, on ordinary personal-injury litigation. Damages for personal injury include consequential losses such as lost earnings, treatment, care and accommodation adaptations. Property damage, including vehicle repairs and hire, is ordinarily a separate non-personal-injury claim. In a case which is fairly a personal-injury action overall, the availability of QOCS for the injury claim should generally be the starting point, and may be the finishing point, of a discretionary costs decision. However, a universal claimant-favouring rule would invite the artificial addition of weak personal-injury claims. Paragraph 12.6 of Practice Direction 44 was wrong insofar as it suggested a normally adverse approach whenever an exception in rule 44.16 was engaged.

• Court of Appeal (Civil Division) Dismissed the appellant’s appeal and affirmed the decision that the mixed-claim exception to QOCS applied.
• High Court (Queen’s Bench Division, Whipple J) Allowed the respondents’ appeal in [2018] EWHC 2046 (Admin), holding that the automatic QOCS protection fell away in this mixed claim, subject to the court’s discretionary costs jurisdiction.
• First-instance judge (HHJ Luba QC) Awarded £9,000 for non-personal-injury claims and dismissed the personal-injury claim. In a later costs judgment, he held that QOCS prevented enforcement of adverse costs beyond the damages recovered.