High Court Overturns Ruling That QOCS Automatically Applied To Claim With PI Element

Brown v Commissioner of Met and Chief Constable of GMP [2018] EWHC 2046

The High Court has ruled that a circuit judge was incorrect in ordering that qualified one-way costs shifting (QOCS) automatically applied to a claim concerning misuse of data because it also included a personal injury (PI) element.

Applying the guidance in Robert Jeffreys v The Commissioner of the Police of the Metropolis [2017] EWHC 1505 on whether QOCS protection applies where a claim encompasses a claim for personal injury along with other elements, the first instance decision was overturned.

Background

This was an appeal against a judgment by HHJ Luba QC in relation to one aspect of the costs 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"). She brought four separate causes of action:

Breaches of Data Protection Act 1998 Breaches of the Human Rights Act 1998 Misfeasance in public office The misuse of private information The Defendants conceded on 1 and 2, the Claimant lost on 3, and won 4 at a hearing. The judge also rejected the claimant's claim for aggravated and exemplary damages.

As part of those causes of action, the Claimant advanced a claim for personal injury, alleging she had suffered depression. The Judge held that she had not suffered any personal injury in the form of any recognised psychiatric injury and that the breaches of the DPS did not cause or materially contribute to any such injury she might have been able to establish. The judge did accept that she had suffered distress sufficient to warrant an award of damages under s.13(2) Data Protection Act 1998.

His Honour Judge Luba QC made a single global award of general (compensatory) damages to reflect the three causes of action on which she had succeeded. The Claimant was awarded £9,000. 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 Ms Brown was entitled to QOCS protection. He then ordered that the Defendants pay 70% of the claimant's costs up to the date of their respective Part 36 offers, and thereafter ordered the Claimant to pay the costs of the...