The High Court has offered some guidance on how to apply the exception to qualified one-way costs-shifting (QOCS) involving ‘mixed claims’ involving both a personal injury (PI) and non-PI element, with the nature of the link between the two elements of the claim a key consideration.
QOCS exception cases have focused on fundamental dishonesty, but CPR 44.16(2)(b) provides another exception where “a claim is made for the benefit of the claimant other than a claim to which this section applies”.
In Robert Jeffreys v The Commissioner of the Police of the Metropolis, the claimant brought a monetary claim for false imprisonment, assault and battery, malicious prosecution and misfeasance in public office. He also claimed that the events had exacerbated his pre-existing paranoid schizophrenia and, through the use of handcuffs, caused swelling and bruising to his wrists. The entire claim was unsuccessful.
The defendant police applied to disapply QOCS, and at first instance HH Judge Freedland QC in Central London Crown Court – while noting there was no authority of the issue – said that rule 44.16(2)(b) was engaged.
He rejected the claimant’s argument that the PI claim was inseparable from the main claim and that therefore 44.16(2) did not apply because the claim was not made for the benefit of the claimant other than a claim to which this section applies.
“I am clear that in this case this was a claim for serious wrongdoing… and also a personal injury claim, but I have no doubt that this was a claim made for the benefit of the claimant other than a claim to which the section applies, in other words personal injury…
“In my judgment, it is just and equitable in this case that there should be an order made against the claimant upon appropriate terms to be drawn up by the parties to the extent of 80% of the defendant’s costs. It is appropriate that I should apportion 20% to the personal injury element of the claim.”
He subsequently reduced the percentage to 70% as the exacerbation that Mr Jeffreys had suffered lasted for 18 months and not six months, as had been submitted by the defendant.
Mr Justice Morris dismissed the appeal last week. There is no transcript yet of the ruling, but the claimant’s solicitor-advocate, London-based Sophie Khan, has prepared a note and Lawtel has also reported it.
Ms Khan maintained her argument that there was no divisibility or severability between the malfeasance claims and the PI claim.
Morris J nonetheless concluded that the QOCS exception did apply. He said there was no authority, and nothing in the CPR or White Book guidance or Civil Justice Council reports on QOCS, to support the proposition that, for rule 44.16(2)(b) to apply, the PI and non-PI claims had to be divisible.
In any case, he held that here the PI and non-PI elements were divisible. The malfeasance claims were claims in their own right and damages could have been awarded separately if the claim had succeeded.
However, Ms Khan reported that he went on to say that where there was a single non-PI element of a claim that was inextricably linked to the PI claim, the exception would not apply.
Morris J rejected Ms Khan’s second submission that there had to be an award for damages and/or interest made in the claimant’s favour before rule 44.16(2)(b) could be considered.
Ms Khan said it was an important decision that would help claimants where, for example, the non-personal injury claim was the cause of the personal injury. “This judgment should be relied on by claimants who have a single ‘mixed claim’ if they are ultimately unsuccessful at trial,” she said.
Picture credit: Dave Conner (cropped)