Robert Jeffreys v The Commissioner of the Police of the Metropolis
Qualified One-way Cost Shifting (QOCS) was one of the foundations of the Jackson reforms in that it sought to eradicate the need for Claimant’s to obtain ‘expensive’ ATE policies, which would therefore reduce the amount of litigation costs that the Defendant was exposed to. QOCS can be disapplied (most notably when a Claimant fails to beat a Defendant’s Part 36 offer). But there is another, much less used way, and that is in so called “mixed” cases i.e. where there is a claim brought that includes both personal injury and non-personal injury elements.
Starting with the relevant section of the rules, CPR 44.16(2)(b) states as follows:-
“(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.”
In the case of Robert Jeffreys v The Commissioner of the Police of the Metropolis, the Claimant had brought a claim for substantial monetary damages for false imprisonment, malicious prosecution, misfeasance, assault and battery. The Claimant also brought a claim for personal injury on the basis that his pre-existing paranoid schizophrenia had been exacerbated and he had suffered swelling and bruising to his wrists as a result of the incident. The Claimant was unsuccessful with regards to all aspects of his claim and a costs hearing was ordered.
At the costs hearing, the Claimant argued that because the claim contained a personal injury element, they were protected by QOCS (CPR 44.13), and thus the Defendant were not entitled to any costs award. The Defendant argued that the exception as per CPR 44.16(2)(b) applied. At first instance, HHJ Freeland QC agreed with the Defendant and permitted the Defendant to enforce their costs.
HHJ Freeland QC gave the reasoning that the majority of the claim was malfeasance and that it would be “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”. The percentage was reduced to 70% after it was found that the extent of the injuries claimed was greater than the Defendant had submitted.
The Claimant subsequently appealed on the basis that the Judge did not have discretion to apply the exception because the actions of the police officers were consequential on both the personal injury and non-personal injury aspects of the claim – in other words there was no divisibility between the claims.
Morris J dismissed the appeal in the High Court and found that the exception did apply and that there was nothing to support the notion that the personal injury and non-personal injury claims had to be divisible, although he did consider that in this case they were divisible.
Morris J went on however, to state that where there was a single non-personal injury element of a claim that was inextricably linked to the personal injury claim, the exception would not apply, and QOCS would be enforceable.
On one hand this is a helpful case for Claimant Solicitors, as it reinforces where a non-personal injury claim is the cause of a personal injury claim, if subsequently unsuccessful at Trial the Claimant benefits from the protection of QOCS as it was intended. However, where the personal injury element of a claim is a minor element and not inextricably linked, the Defendant has the ability to come after the Claimant to enforce their non personal injury costs. In such circumstance appropriate funding arrangements will need to be in place, likely including insurance.