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

Where proceedings combine personal-injury claims with other claims, they are mixed claims under CPR r 44.16(2)(b), but the court must still exercise the discretion by reference to the nature of the proceedings as a whole. If the case can fairly be described as a personal-injury case, the availability of QOCS protection for the personal-injury claims is the starting point and ordinarily supports a costs-neutral outcome. Enforcement beyond that level requires exceptional features of the non-personal-injury claims. A modest additional enforcement percentage may be appropriate where exceptional issues caused additional costs relating to non-personal-injury claims.

The claimants brought claims against Derbyshire County Council and the Chief Constable arising from child-protection interventions, arrests and related events. They pursued claims under the Human Rights Act 1998, including alleged breaches of Articles 5, 6 and 8 of the Convention, negligence claims, and false-imprisonment claims. The claims were dismissed in the liability judgment, and the parties agreed that the claimants should pay costs.

The costs issues were whether the proceedings were mixed claims under CPR r 44.16(2)(b), whether it was just to permit enforcement of the defendants’ costs, to what extent enforcement should be permitted, and what interim payments should be made.

1. The court held that the proceedings were mixed claims within CPR r 44.16(2)(b). Each claimant had advanced personal-injury damages claims, but had also pursued claims not confined to personal injury, including aggravated damages and, in one case, special damages unrelated to personal injury. The approach in Brown v Commission of the Police of the Metropolis [2020] 1 WLR 1257 and Achille v Lawn Tennis Association Services Ltd [2023] 1 WLR 1371 governed the exercise of the discretion.
2. The proceedings could fairly be described in the round as a personal-injury case. The claims were pursued almost exclusively for personal-injury damages; most pleaded heads of loss concerned injury, treatment or lost capacity; the evidence and disclosure were directed to those claims; and the personal-injury claims were evidentially sound. The nature of the loss claimed, rather than the cause of action, was material.
3. Because the case was in substance a personal-injury case, the starting point was that QOCS protection would have been available for the personal-injury claims and that a costs-neutral result should ordinarily be achieved. The court rejected the defendants’ proposed starting point that 100% of the costs should be enforceable once automatic QOCS protection was unavailable.
4. The claimants’ conduct concerning interlocutory applications, trial arrangements, legal arguments, witness allegations, settlement engagement and means did not amount to exceptional features. The late pursuit and abandonment of an Equality Act claim also did not meet that threshold. The handling and development of Mr Barratt’s evidence was exceptional because it contributed directly to a split trial and affected the non-personal-injury claims maintained close to or throughout trial.
5. The exceptional feature generated only modest additional costs. Permission was therefore granted to enforce the defendants’ costs orders only to the extent of 5%, rather than the 85% sought. Under CPR 44.2(8), the claimants were ordered to make interim payments of £5,875 to each defendant within 14 days.