Edwin Afriyie v The Commissioner of Police for the City of London

In a mixed claim involving personal injury and other heads of loss, the court must exercise its discretion under CPR r 44.16(2)(b) justly. The first question is whether the proceedings can fairly be characterised, viewed in the round, as a personal injury case. That assessment focuses principally on the damages claimed rather than the causes of action pleaded. Where the case is, in substance, a personal injury claim, QOCS protection remains the starting point. A costs-neutral result will generally be appropriate unless the non-personal-injury claims contain exceptional features. Ordinary litigation choices, unsuccessful allegations and findings relevant to both personal injury and non-personal-injury claims will not ordinarily suffice.

The claimant’s claims for assault, battery and misfeasance in public office arising from an incident involving the use of a taser were dismissed after trial in the liability judgment, [2023] EWHC 1632 (KB). The defendant sought the usual order for costs and permission to enforce it under CPR r 44.16(2)(b), on the basis that the proceedings were a mixed claim. She also sought an interim payment on account.

The parties agreed that the claim was mixed. The central issue was whether it was just to permit enforcement of the costs order, and, if so, to what extent.

1. The claimant, as the unsuccessful party, was ordered to pay the defendant’s costs, subject to assessment if not agreed. However, permission to enforce the order under CPR r 44.16(2)(b) was refused, and the application for payment on account was dismissed.
2. The court applied the guidance in Brown v Commission of the Police of the Metropolis. A claim is not assessed by reference to its cause of action. The relevant question is whether the proceedings can fairly be described, in the round, as a personal injury case. The court should consider the substance and composition of the damages claimed.
3. The claim was, in the round, a personal injury case. The principal claim concerned injuries caused by the tasering incident. The claims for aggravated and exemplary damages, although non-personal-injury heads of claim, largely arose from the same conduct and issues that were relevant to the primary liability claims.
4. Once the claim was characterised in that way, the starting point was that QOCS protection would have been available for the personal injury claim and that a costs-neutral result should ordinarily be achieved. That approach was confirmed in Achille v Lawn Tennis Association Services Limited.
5. There were no exceptional features of the non-personal-injury claims. The claimant’s litigation choices, rejection of settlement offers, unsuccessful allegations, conduct contributing to the incident, dishonesty finding and related matters were ordinary incidents of the litigation, were relevant to the personal injury claims as well, or did not justify enforcement under the mixed-claim exception.

This was a first-instance costs judgment following the liability judgment in the same proceedings, [2023] EWHC 1632 (KB).