ABC & Ors v Derbyshire County Council & Ors (No. 2: Costs)

The court resolved contested costs issues following a liability judgment dismissing the claimants' substantive causes of action. The principal legal question was the application of the Qualified One-Way Costs Shifting (QOCS) regime to a "mixed claim" under CPR r 44.16(2)(b) where personal injury heads were pursued alongside non-personal injury heads (notably aggravated and modest special damages). The judge applied the guidance in Brown v Commissioner of the Police of the Metropolis and Achille v Lawn Tennis Association Services Ltd to ask whether the proceedings can be described "in the round" as a personal injury case.

On the facts the proceedings were so describable: the parties focused on personal injury damages, disclosure, witness and expert evidence was directed to injury, and the non-personal injury claims required little or no additional evidence. An "exceptional feature" was identified in relation to the role and testing of the evidence of one witness (Mr Barratt), which contributed to the need for a split trial. Taking that factor into account, and seeking a cost-neutral result in the spirit of QOCS, the court exercised its CPR r 44.16(2)(b) discretion to permit enforcement of the defendants' costs orders only to the extent of 5% of those costs, and ordered modest interim payments of £5,875 to each defendant under CPR 44.2(8).

Background and parties: The four claimants (ABC, DEF, GHI and JKL) sued Derbyshire County Council and the Chief Constable of the Derbyshire Constabulary. In a separate liability judgment dated 28 April 2023 the court dismissed all claims (HRA Article 8 claims for all claimants, negligence claims by GHI and JKL, Article 5 and false imprisonment claims by ABC and DEF). This judgment determines costs.

Nature of the proceedings and remedies sought: The claimants sought personal injury damages (general damages for psychiatric/psychological injury, treatment costs, loss of earnings/disadvantage on the open labour market under the Blamire principle), aggravated damages (large sums), and some modest special damages for ABC. Some non-financial remedies and other heads (declarations, expunging safeguarding records, exemplary damages, broader EA 2010 damages) were pleaded earlier but not pursued at trial.

Procedural posture: The trial had been listed to deal with liability and quantum, but difficulties arising from the evidence of a witness (Mr Barratt) and issues over expert evidence led the judge to order a split trial so that liability could be determined first. Costs submissions were heard on paper and at a remote hearing on 11 May 2023.

Issues framed by the court:

• Whether these proceedings constituted a "mixed claim" for the purposes of CPR r 44.16(2)(b) such that the automatic QOCS protection was displaced.
• If so, whether the proceedings could nonetheless be fairly described "in the round" as a personal injury case so that QOCS protection should inform the exercise of the court's discretion under CPR r 44.16(2)(b).
• Whether any exceptional features of the non-personal injury claims justified enforcement of the defendants' costs beyond what would be permitted under QOCS guidance.
• Whether an interim payment on account of costs should be ordered under CPR 44.2(8), and if so, how much.

Court's reasoning: The court concluded that the proceedings were a "mixed claim" because each claimant advanced both personal injury and non-personal injury heads. Applying Brown and Achille, the correct approach was to begin with the starting point that QOCS protection would have applied to the personal injury claims and that the judge should seek a cost-neutral result unless there were exceptional features of the non-personal injury claims.

The court found that, on the facts, the proceedings could be fairly described in the round as a personal injury case: the claimants had pursued personal injury damages at trial; nearly all disclosure, witness and expert evidence related to injury; and the non-personal injury heads required little additional evidence. The only exceptional feature warranting departure from a cost‑neutral approach was the problems arising from the evidence of Mr Barratt which materially affected the conduct and course of the trial and contributed to the need for a split trial.

Weighing those factors, the court exercised its discretion under CPR r 44.16(2)(b) to permit enforcement of the defendants' costs orders only to the limited extent of 5% of those costs. Applying CPR 44.2(8) and prorating the defendants' proposed interim payment of £100,000 to the permitted enforcement percentage, the court ordered interim payments of £5,875 to each defendant, payable within 14 days.

Subsidiary findings: The court rejected the defendants' broader criticisms as insufficiently "exceptional" to justify a higher enforcement percentage and noted that interlocutory positions adopted by the claimants had been court-approved and therefore could not be treated as adverse conduct for costs purposes. The court also observed that the claimants' personal injury claims were evidentially sound and not properly characterised as opportunistic or abusive.

The court ordered that the claimants pay the defendants' costs (to be assessed if not agreed) but granted permission under CPR r 44.16(2)(b) to enforce those costs only to the extent of 5% of the defendants' costs. The court accepted that the proceedings were a "mixed claim" but, applying Brown and Achille, found that the case could fairly be described in the round as a personal injury case; an exceptional feature (the problems with Mr Barratt's evidence that contributed to a split trial) justified a modest departure from full QOCS protection. The court also ordered interim payments of £5,875 to each defendant under CPR 44.2(8), payable within 14 days.