This article originally appeared in Issue 4 (March 2020).
The Court of Appeal has clarified that if proceedings involve a claim for damages for personal injury together with a non-personal injury claim, the costs protection under the qualified one-way costs shifting regime in CPR r. 44.13 to r.44.16 does not automatically apply. The Court also gave general guidance on the applicability of the regime in ‘ordinary’ personal injury cases which might involve consequential and mixed claims.
This was an appeal from Whipple J in respect of a ‘mixed claim’ i.e. one where the claim included a claim for damages for personal injury, but also included claims for non-personal injury damages and other relief. Claims for general damages for misuse of the appellant’s personal data were upheld by the trial judge but she rejected the claim for damages for personal injury. The Claimant had failed to beat the Respondent’s Part 36 offer resulting in adverse costs orders against her. The issue was whether the Claimant could automatically avoid the enforcement of those orders by relying on QOCS on the ground that one of her failed claims was a claim for damages for personal injury.
The Court of Appeal set out the relevant rules and the leading cases on the topic, in particular, Wagenaar v Weekend Travel Limited and Anor  1 WLR 1968; Siddiqui v The Chancellor, Masters and Scholars of the University of Oxford  EWHC 536 (QB) and Jeffreys v Commissioner of the Metropolis  EWHC 1505 (QB). The Court then clarified that: “The QOCS regime only applies to claims for damages for personal injury. It does not apply to other types of claim. There is therefore no justification for allowing claims which are not claims for damages for personal injury (such as, for example, the data protection or police misconduct claims which were successful) to attract automatic QOCS protection”.
As to the tricky point of interpretation to reach this conclusion, Coulson LJ explained that the exception at r.44.16(2)(b) does not refer to “proceedings” but simply refers to “a claim …other than a claim to which this section applies”. The narrower words of the exception demonstrate that what the CPR intended was to exempt from the QOCS regime, within the widest possible umbrella of the proceedings as a whole, claims which were not claims for damages for personal injury. He also clarified that the word “claim” was not to be read as “cause of action” and approved Morris J’s decision in Jeffreys that it was an unwelcome complication to interpret the rules by reference to whether claims were “divisible” or “inextricably linked” to the claim for personal injuries, whether by reference to claim having the same cause of action, or being linked on the facts.
It was nonetheless necessary for the Court to give guidance on how personal injury claims were to be understood and how the QOCS regime would apply to, for example, ordinary PI or clinical negligence claims where there are claims for loss of earnings, care, accommodation etc. and for mixed claims such as RTA claims where what is claimed is both damages for personal injuries, e.g. whiplash, and damage to property, e.g. repairs, credit hire etc.
What the Court said was that:
“if 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 care 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.” The judgment concludes by saying: “I consider it likely that in most mixed claims of the type that I have described, QOCS protection will – one way or another – continue to apply. It therefore follows that, to the extent that paragraph 12.6 of PD 44 suggests a different approach, I consider it to be wrong. It needs to be amended as soon as possible.”
That is a reference to the exceptions in CPR 44.16(1) and CPR 44.16(2)(b). That latter exception “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 for the claimant other than a claim to which this section applies.”
This clarification of a poorly drafted rule on the operation of the QOCS regime to ‘mixed cases’ is undoubtedly welcome although it still remains the case that a claimant who, for example, puts forward a mixed human rights or data protection and a personal injury claim arising out of treatment in hospital will be uncertain of the extent to which QOCS protection applies to the whole of the claim. On the ‘blended’ approach there is still a risk that the claim will not be seen as “a personal injury claim in the round” and that at least some adverse costs may be payable by the Claimant to the Defendant in respect of the ‘add-on’ HR/DPA claim if it fails. Certainty of QOCS protection is plainly important to Claimants who otherwise need to rely on BTE insurance or ATE insurance to guard against the risk of adverse costs. As is mentioned in passing by the Court, there is force in the argument that misuse of information and breaches of the DPA (one could also include breach of the HRA) are cases that ought to benefit from QOCS protection, but such extension of the QOCS regime can only be made by amendments to the CPR not be judicial intervention. This last point has been re-emphasised by the recent unsuccessful judicial review of the decision not to extend QOCS protection to discrimination claims following the latest LASPO review- R(ota Leighton) v Lord Chancellor  EWHC 336.