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A potential way out of QOCS for defendants in mixed claims made clearer

18 June 2018

In the recent decision in The Commissioner of Police of the Metropolis & Anor v Brown (2018) Mrs Justice Whipple has held that in mixed claims (claims arising out of a cause of action for both compensation for personal injury as well as non-PI damages) the court does have discretion to disapply qualified one way costs shifting (QOCS) protection. "…in an unusual RTA, for example where the personal injury claim is modest but the main issue in the case relates to damage to the car, the court might consider it just to remove QOCS protection."  William MacKenzie outlines the findings.


The claimant brought four causes of action against two defendants, the Commissioner of Police of the Metropolis and the Chief Constable of Greater Manchester Police: (1) breaches of the Data Protection Act 1998 (DPA), (2) breaches of the Human Rights Act 1998 (HRA), (3) misfeasance in public office and (4) the tort of misuse of private information.

The defendants conceded (1) and (2). The claimant lost on (3) but won on (4). As part of her case on all four claims, the claimant submitted that she had sustained personal injury in the form of depression. The judge rejected the claimant's claim for depression but did award damages for distress under s. 13(2) Data Protection Act 1998 (DPA).

The judge made a single global award of general damages to reflect the three causes of action on which the claimant had succeeded in the sum of £9,000. The claimant failed to beat Part 36 offers made by each of the defendants and as a result the issue of payment of costs arose. The judge at first instance held that the claimant was entitled to QOCS protection as she had pursued a claim for personal injuries along with claims for non-PI damages and it was sufficient that the two claims were directly linked. This, of course, meant the defendants could only enforce their costs orders to the extent of the damages award.

The defendants appealed this decision arguing that the judge had erred in law in construing Section II of CPR Part 44 so as to confer "automatic" QOCS protection for the claimant. The defendants sought to argue that her claim was for much more beyond damages for personal injury and that the mixed nature of her claim meant that QOCS protection was not automatic, but was subject to the judge's discretion, which he needed to consider whether to exercise.


In allowing the defendants' appeal, Whipple J held that mixed claims are within the scope of QOCS by virtue of CPR 44.13(1) but that CPR 44.16(2)(b) provides a mechanism to deal with mixed claims and potentially disapply QOCS. "The mechanism is quite simply to leave it to the court at the end of the case to decide whether, and if so to what extent, it is just to permit enforcement of a defendant's costs order. In this way, the infinite variety of mixed claims can be dealt with fairly and flexibly, according to the justice of the case. Read in this way, the provision is entirely consistent with the overriding objective."

Whipple J disagreed with the trial judge as to the linkage between the two types of claim: the existence of the link was unimportant as the entire claim was still a mixed claim. Only the personal injury element of the proceedings is of course caught by the automatic entitlement to QOCS protection.

CPR 44.16(2)(b) states:

(2) Orders for costs made against the claimant may be enforced up to the full extent of such orders with the permission of the court, and to the extent that it considers just, where -

(b) a claim is made for the benefit of the claimant other than a claim to which this Section applies.

Whilst this action was brought against the police, the judge made the following, more general, comments: "A standard PI claim for damages for personal injury and damage to property is subject, at least in theory, to the discretion in CPR 44.16(2)(b) because the claimant is claiming for something beyond damages for personal injuries. In an ordinary claim arising out of an RTA, it might be thought unlikely that a court would consider it just to remove QOCS protection, simply because the injured claimant also sought compensation for damage to their car. But the discretion is there, and in an unusual RTA, for example where the personal injury claim is modest but the main issue in the case relates to damage to the car, the court might consider it just to remove QOCS protection."

Whipple J having ruled that the claimant did not benefit from automatic QOCS protection but that it was a matter for the court’s discretion whether that protection should be given, there will be a further hearing before the trial judge in September for him to consider whether or not to exercise that discretion.


On the face of it, any claim which seeks to recover damages relating to anything other than PI has the potential for QOCS to be disapplied. As the judge made clear even though this case was set against a very different set of facts, this will obviously include RTA claims where alongside a claim for PI, the claimant is also seeking to recover damages which relate to the vehicle, such as repair costs or credit hire. This may lead to claimants in that sort of case considering whether to take out ATE policies in order to provide cover for that potential liability to the extent they do not do so currently, taking into account the non-recoverability of the premium.

In reality the court is only likely to disapply QOCS protections where the main focus of the dispute concerns the non-PI aspects of the claim. The old adage of 'each case turning on its own facts' could not be more apt. Relevant factors in relation to a comparison between the PI and the non-PI parts of the claim will not only include the respective quantum involved, but also the detail and extent of the issues and the argument on each. However, this judgment is certainly a string to the defendant's bow in escaping QOCS in certain cases.

It may be worthwhile in addition insurers looking over their old cases to see if any such cases may fall within the ambit of these circumstances. There is no limitation period on costs claims and therefore even cases dating back to 2013 when QOCS was introduced could potentially be open to an application to disapply QOCS if they meet the appropriate criteria as considered in this judgment.


DWF Costs will happily assist in any review of cases. Please contact William Mackenzie on 020 7645 9507 or william.mackenzie@dwf.law or Steven Dawson on 0113 261 6118 or steven.Dawson@dwf.law to discuss this further.

Further Reading