Court Of Appeal Upholds Finding That QOCS Does Not Automatically Apply To Claim With PI Element

The Court of Appeal has upheld a High Court decision which found that qualified one-way costs shifting (QOCS) does not automatically apply to a 'mixed claim' concerning misuse of data, which also included a personal injury (PI) element.

The decision is beneficial for those parties defending mixed claims, and offers much needed clarification on the application of the exception under CPR 44.16(2).

Background

This was an appeal against the decision of Mrs Justice Whipple in relation to particular costs elements of an action brought by Andrea Brown, a former police officer, against the Commissioner of Police of the Metropolis ("the first defendant") and the Chief Constable of Greater Manchester Police ("the second defendant").

At first instance, the claimant brought various claims for damages under the Data Protection Act 1998 ("DPA") and Human Rights Act 1998 (HRA), for breach of contract, misfeasance in public office, and the misuse of private information. The respondents admitted liability under the DPA and the HRA. The claim for damages for breach of contract was not pursued. The claims for damages for misfeasance and misuse of private information went to trial. The claimant lost on the former but won on the latter.

As part of those causes of action, the Claimant advanced a claim for personal injury, alleging she had suffered depression. HHJ Luba QC held that she had not suffered any personal injury.

The claimant received a single global award of £9,000 in general (compensatory) damages to reflect those causes of action on which she had succeeded. On the basis on a two-thirds/one-third apportionment of the damages between the Met and GMP, the respective awards against each Defendant were less than the Part 36 Offer made by the Met on 26 February 2016, and equal to the Part 36 offer made by the GMP on 2 May 2016.

At a subsequent hearing on costs, HHJ Luba QC held that the claimant was entitled to QOCS protection, and made costs orders against the defendants. The defendants appealed the decision to grant QOCS protection.

Mrs Justice Whipple granted the defendants' appeal, applying the guidance in Jeffreys and Siddiqui. She held that this was a mixed claim. As it included claims for damages for matters unconnected to personal injury, as well as a claim for personal injury damages, one of the express exceptions to the QOCS regime (44.16(2)) was triggered. The automatic costs protection arising from the QOCS regime fell away, though this was a...

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