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6 Aug 18 Back to Listing

QOCS conundrum finally solved?

The High Court last week handed down another judgment (Brown v 1) Commissioner of Police for the Metropolis, 2) Chief Constable of Greater Manchester Police [2018] EWHC 2046) supporting the Jeffreys construction of CPR 44.16(2)(b).

The Claimant brought claims against the Metropolitan and Greater Manchester Police arising out of their unlawful disclosure of personal information about her concerning her overseas travel. She advanced four causes of action: 1) breach of the Data Protection Act 1998, 2) breach of the Human Rights Act 1998, 3) misuse of private information, 4) misfeasance in public office. She sought damages for personal injury under each of the four causes of action, along with other forms of damages/relief.

Both police forces admitted liability in respect of the DPA and HRA claims prior to trial. At trial, the claim for misuse of private information succeeded and the misfeasance claim failed. The Claimant was awarded £6,000 damages by the MPS and £3,000 damages by GMP. No part of those awards included damages for personal injury, the trial judge having determined that the Claimant’s medical evidence did not establish that she had sustained any recognised psychological/psychiatric disorder by reason of the police’s unlawful conduct.

In relation to costs, it was nevertheless common ground that the claim as a whole was subject to the QOCS provisions since it had included a claim for damages for personal injury. The default position (pursuant to CPR 44.14(1)) was, therefore, that the police would not be able to enforce any adverse costs orders made in their favour beyond the aggregate amount of any order for damages and interest made in the Claimant’s favour. The police argued, however, that it was open to the Court to apply the exception to that rule in CPR 44.16(2)(b) and to permit enforcement of any costs orders to the extent that the Court considered just. The issue on appeal was whether the trial judge was right to rule that CPR 44.16(2)(b) was inapplicable to the case because the Claimant had sought personal injury damages under each of the four pleaded causes of action.

The High Court followed the intervening decision of Morris J in Jeffreys v Commissioner of Police of the Metropolis [2017] EWHC 1505 (QB) as to the meaning and scope of CPR 44.16(2)(b). Whipple J held that CPR 44.13 provided a “broad gateway through which any proceedings which include a claim for damages for personal injury will pass”.  The wording of rule 44.16(2)(b) (“where a claim is made for the benefit of the claimant other than a claim to which this Section applies”) denoted a “mixed claim”, that is, a claim in which both personal injury damages and some other form of damages/relief were claimed. In any such case, the discretion to permit enforcement of costs above and beyond the default provision in rule 44.14 was available. Accordingly, the discretion was available in the instant case, irrespective of whether personal injury damages were claimed under each of the four causes of action or only some of them.

This is now the third High Court decision (see also Siddiqui v Chancellor, Masters and Scholars of the University of Oxford [2018] EWHC 536 (QB)) adopting the “mixed claim” construction of this contentious rule.

Charlotte Ventham appeared for Greater Manchester Police in Brown.