Munira Pathan v Commissioners of Police of the Metropolis

QOCS applies to proceedings which, when the court determines enforcement of costs, include a claim for damages for personal injury. It applies to the proceedings as a whole, including costs incurred before the personal injury claim was added by amendment. The question is binary: the proceedings either include such a claim or they do not.

Where proceedings are mixed, CPR 44.16(2)(b) provides the mechanism for achieving a just result. The court must exercise that discretion with QOCS protection as the starting point. A claim may be viewed in the round as a personal injury claim even where it includes legally distinct non-personal-injury claims arising from the same incident.

The claimant appealed against a County Court costs order following the dismissal of her claim concerning arrest and detention. A personal injury claim alleging psychiatric injury had been added by amendment after proceedings began.

The trial judge permitted enforcement of the defendant’s costs incurred before the amendment, but treated later costs as subject to QOCS. The claimant challenged the former ruling. The defendant sought permission to cross-appeal against the latter. The central issues were whether QOCS applied to the proceedings before amendment and how the discretion concerning mixed claims should be exercised.

1. Appeal allowed and issue remitted. The trial judge had ruled that QOCS did not apply to the period before the personal injury amendment. That was an error of law.
2. Under CPR 44.13(1), the QOCS regime applies where the proceedings include a claim for damages for personal injury. The question is asked when the court considers enforcement of the costs order. It is binary. Once the proceedings included the personal injury claim, QOCS applied to the proceedings as a whole, including the pre-amendment period.
3. The issue was not one of retrospective amendment or relation back. The rules determine when costs protection is automatic and when enforcement remains subject to judicial discretion.
4. For mixed proceedings, CPR 44.16(2)(b) permits enforcement of costs to the extent the court considers just. The danger of adding a weak or spurious personal injury claim is addressed through that discretion, not by excluding costs incurred before amendment from QOCS.
5. In exercising the discretion, the court must treat non-enforcement as the starting point and consider the nature of the mixed claim. Relevant matters may include why the personal injury claim was not initially advanced, the period between first seeking permission and permission being granted, and the strength of the claim on causation and quantum. The court must decide what order is just on the facts.
6. The cross-appeal failed. It was open to the trial judge to regard the post-amendment claim, viewed in the round, as a personal injury claim. The fact that all heads of loss arose from the same incident was relevant. Permission to cross-appeal was refused.

• County Court: HHJ Saunders dismissed the claim on liability and ordered costs, permitting enforcement of costs incurred up to 22 January 2021.
• High Court (King's Bench Division): The appeal was allowed and the QOCS enforcement issue was remitted to the County Court. Permission to cross-appeal was refused.