Court of Appeal refuses automatic QOCS protection for ‘mixed claims’

On Friday 18 October 2019 the Court emphatically refused to go as far as automatically affording Qualified One-way Costs Shifting (QOCS) protection to ‘mixed claims’, i.e. those in which a claim for damages for personal injuries is only one of the claims being advanced by the claimant. The decision in Brown v Commissioner of Police of the Metropolis brings clarity and pragmatism to a potentially difficult issue.

Despite express provision about ‘mixed claims’ in the Civil Procedure Rules and Practice Directions (neither of which actually uses the phrase ‘mixed claims’) there has been a degree of uncertainty over the application of QOCS where claims include a claim for damages for personal injury as well as seeking other relief. What Brown resolves, via Coulson LJ’s clear and comparatively brief judgment, is that ‘mixed claims’ will not automatically benefit from QOCS protection but that its application should be determined by the discretion of the court having regard to the facts of any specific case.

The key issues resolved in this case

Brown was an action for damages for breach of data protection and human rights legislation in which the claimant included a claim for damage for personal injury allegedly caused by the distress of the misuse of her personal data. That claim failed, but she succeeded (in part) on the other elements. The main points of the judgment are as follows:

  • The inclusion of claims within proceedings which are not “claims for damages for personal injuries” will trigger the exception to QOCS at CPR 44.16(2)(b);
  • It would be wrong to allow claimants with ‘mixed claims’ to use the personal injury element of a claim to gain automatic QOCS protection in respect of their claims for non-personal injury damages and/or other relief;
  • When considering what amounts to “damages for personal injuries” such damages will include all other claims consequential upon that personal injury, such as claims for lost earnings as a result of the injury and the phrase is not therefore confined to general damages only.
  • In the event that a ‘mixed claim’ (such as vehicle-related damages and personal injury in a motor claim) can fairly be described in the round as a personal injury claim then unless there is something exceptional in the non-personal injury element, a ‘cost neutral’ outcome should be achieved (which very likely means that enforcement of costs orders against the claimant would be restricted to the level of damages recovered, per CPR 44.14(1)).
  • The extent to which the Practice Direction to CPR 44 suggests that where a ‘mixed claim’ exception is established a claimant will be adversely penalised in costs is wrong and should be amended to reflect the ‘cost neutral’ general approach.

Despite relying on judicial discretion as the solution, it looks unlikely that the operation of such discretion in practice will result in a free for all and/or further confusion. According to Coulson LJ,

“…the fact that QOCS protection would have been available for the personal injury claim will be the starting point, and possibly the finishing point too, of any exercise of the judge’s discretion on costs. [If] the proceedings can fairly be described in the round as a personal injury case then, unless there are exceptional features of the non-personal injury claims (such as gross exaggeration of the alternative car hire claim, or something similar), I would expect the judge deciding costs to endeavour to achieve a ‘cost neutral’ result through the exercise of discretion. In this way … I consider it likely that, in most mixed claims of the type that I have described, QOCS protection will – in one way or another – continue to apply.

It would be wrong in principle to conclude that all mixed claims require discretion to be exercised in favour of the claimant, because that would lead to abuse, and the regular ‘tacking on’ of a claim for personal injury damages (regardless of the strength or weakness of the claim itself) in all sorts of other kinds of litigation, just to hide behind the QOCS protection.”

What this means

The judgment in Brown represents a deterrent to including spurious personal injury elements in cases in an attempt to hide behind QOCS protection. It upholds the central principle that ‘costs follow the event’ and makes it clear that the court has discretion to penalise exaggerated non-personal injury elements of ‘mixed claims’ as exceptions to QOCS without necessarily having to invoke one of the other exceptions to QOCS (such as fundamental dishonesty).

The fact that a pragmatic and sensible view in the round is encouraged when considering proceedings as a whole is to be welcomed so that where, as in the present case, it is clear that a claim is not really about personal injury but merely happens to include a personal injury element (which fails), it is just for such a losing litigant to pay the consequences.


Written by Adam Burrell, partner and head of costs at BLM


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