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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Brown v Commissioner of Police of the Metropolis & Anor [2019] EWCA Civ 1724 (18 October 2019) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1724.html Cite as: [2019] EWCA Civ 1724, [2020] PIQR Q3, [2020] 3 All ER 273, [2020] WLR 1257, [2019] WLR(D) 573, [2019] Costs LR 1633, [2020] 1 WLR 1257 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
WHIPPLE J
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE DAVID RICHARDS
and
LORD JUSTICE COULSON
____________________
ANDREA BROWN |
Appellant |
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- and - |
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(1) THE COMMISSIONER OF POLICE OF THE METROPOLIS (2) THE CHIEF CONSTABLE OF GREATER MANCHESTER POLICE -and- THE EQUALITY AND HUMAN RIGHTS COMMISSION |
Respondents Intervener |
____________________
for the Appellant
Lord Faulks QC & Adam Clemens (instructed by Weightmans LLP and Clyde & Co. LLP)
for the Respondents
Ben Jaffey QC & Raj Desai
(instructed by The Equality and Human Rights Commission) for the Intervener
Hearing date: 3rd October 2019
____________________
Crown Copyright ©
Lord Justice Coulson :
1. The Issue
2. The Background
"18. As I have already indicated, pleadings against both Defendants incorporate four heads or causes of action. If any one of them does not include a claim for personal injury damages, then it might be arguable that the terms of 44.16 (2)b are met. It seems to me, however, that on a consideration of the pleaded case here, set out in the Statement of Case advanced by the claimant against each of the two defendants, what is alleged is that injury has followed as a consequence of each of the four matters that I have already recounted in this judgment …
19. It is not a case, for example, in which there has been included a separate claim for some other form of damage or loss arising in consequence of that claim alone. It seems to me in those circumstances, on the fact of these particular cases, that the exceptions in CPR 44.16 on which the defendants would seek to rely if matters came to that point, is not in fact available."
The respondents appealed Judge Luba's decision on the basis that he had wrongly granted the appellant the automatic protection of the QOCS regime in respect of claims which were not claims for damages for personal injury.
3. The QOCS Regime
"(1) This Section applies to proceedings which include a claim for damages –
(a) for personal injuries;
(b) under the Fatal Accidents Act 1976; or
(c) which arises out of death or personal injury and survives for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934,
but does not apply to applications pursuant to section 33 of the Senior Courts Act 1981or section 52 of the County Courts Act 1984 (applications for pre-action disclosure), or where rule 44.17 applies."
When, during the course of this judgment, I refer to 'a claim for damages for personal injury', that is intended as convenient shorthand to encompass the three types of claim detailed in r.44.13(1)(a)-(c).
"'claim for personal injuries' means proceedings in which there is a claim for damages in respect of personal injuries to the claimant or any other person or in respect of a person's death, and 'personal injuries' includes any disease and any impairment of a person's physical or mental condition…"
This is the same definition as appears in the Limitation Act 1980 at section 38 (1). It is trite law that 'distress', 'upset', 'fear' and other similar human emotions do not constitute personal injury: see most recently Stewart J in Kimathi v The Foreign and Commonwealth Office [2018] EWHC 1305.
"Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant."
Because orders for costs made against a claimant may be enforced without the permission of the Court only to the extent of any order for damages and interest made in favour of the claimant, a claimant is protected against any liability for the defendant's costs which is greater than the amount (if anything) that the claimant has himself or herself recovered. In that simple way, it is designed to make claims for damages for personal injury cost neutral.
"(1) Orders for costs made against the claimant may be enforced to the full extent of such orders with the permission of the court where the claim is found on the balance of probabilities to be fundamentally dishonest.
(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 –
(a) the proceedings include a claim which is made for the financial benefit of a person other than the claimant or a dependant within the meaning of section 1(3) of the Fatal Accidents Act 1976 (other than a claim in respect of the gratuitous provision of care, earnings paid by an employer or medical expenses); or
(b) a claim is made for the benefit of the claimant other than a claim to which this Section applies…" (Emphasis supplied)
The highlighted exception to the QOCS regime at r.44.16(2)(b) was referred to by Whipple J as the 'mixed claim' exception. Its proper interpretation is at the heart of this appeal.
"In proceedings to which rule 44.16 applies, the court will normally order the claimant or, as the case may be, the person for whose benefit a claim was made to pay costs notwithstanding that the aggregate amount in money terms of such orders exceeds the aggregate amount in money terms of any orders for damages, interest and costs made in favour of the claimant."
4. The Relevant Authorities
"39 It is true, however, that the word "proceedings" in CPR Rule 44.13 is a wide word which could, in theory, include the entire umbrella of the litigation in which commercial parties dispute responsibility for the payment of personal injury damages. I do not think that would be an appropriate construction. Instead, I think the word "proceedings" in CPR Part 44.13 was used because the QOCS regime is intended to catch claims for damages for personal injuries, where other claims are made in addition by the same claimant. There may, for example, in the ordinary road traffic claim, be claims for damaged property in addition to the claim for personal injury damages, and the draftsman would plainly not have wished to allow such additional matters to take the claim outside the QOCS regime.
40 Thus, in my judgment, CPR Rule 44.13 is applying QOCS to a single claim against a defendant or defendants, which includes a claim for damages for personal injuries or the other claims specified in CPR Rule 44.13(1)(b) and (c), but may also have other claims brought by the same claimant within that single claim. Argument has not been addressed to the question of whether QOCS should apply to a subsidiary claim for damages not including damages for personal injuries made by such a claimant against another defendant in the same action as the personal injury claim. I would prefer to leave that question to a case in which it arises. CPR Rule 44.13 is not applying QOCS to the entire action in which any such claim for damages for personal injuries or the other claims specified in CPR Rule 44.13(1)(b) and (c) is made."
Although the first sentence of [40] might be said to offer some support to the appellant in the present case, I do not consider that, when taken together, these paragraphs express a concluded view on the application – or otherwise - of r.44.16(2)(b) to a mixed claim.
"In my judgment, in order to give meaning to the phrase 'a claim is made … other than a claim to which this Section applies' in r.44.16 (2) (b), it must be interpreted as referring to 'proceedings which include a claim other than a claim for damages for personal injury'.
He concluded at [39]:
"Thus, as a matter of construction, I conclude that CPR r 44.16 (2) (b) applies in a case where, in proceedings the claimant has brought a claim for damages for personal injuries and has also brought a claim or claims other than a claim for damages for personal injuries."
"As to the second question, the alleged requirement for divisibility, in my judgment, there is no authority for the proposition that in order for CPR 44.16(2)(b) to apply the personal injury claim and the non-personal injury claim must be "divisible". There is nothing in the wording of the CPR provision itself to support his. Further, there is no reason in principle why there should be such a requirement. If the two claims are "inextricably" linked or otherwise very closely related, then that relationship can be reflected in the exercise of discretion (in the claimant's favour) which arises once CPR 44.16(2)(b) applies."
He therefore rejected the restriction urged on him by the claimant that, for the exception to apply, the personal injury claim and the non-personal injury claim had to arise out of distinct facts or distinct breaches of duty. He said at [55] that "what is ultimately important is whether they are claims for different types of loss".
"7. The drafting of these provisions has been the subject of adverse comment: see, e.g., Jeffreys v The Commissioner of Police for the Metropolis [2017] 4 Costs LO 409 at [35-36]. Nonetheless, those provisions were the subject of detailed scrutiny by Morris J in that case and given a purposive construction. Mr Mallalieu, on behalf of the Claimant, indicates that the analysis in Jeffreys is not accepted.
8. Whilst the analysis is not, strictly speaking, binding upon me, ordinarily I would need to be persuaded that it is obviously wrong before departing from it. I am alive to the objectives of the QOCS provisions (see paragraph 5 above) and the need to be cautious about disturbing those objectives too readily by looking for an exception where an exception was not intended. However, as a matter of construction of the rules, I respectfully think that the analysis in Jeffreys is correct and I propose to apply it to the extent that it is relevant in this case (see further at paragraphs 17-18 below). It is, I might add, also an important objective to ensure that the QOCS provisions are not abused by simply "dressing up" a non-personal injuries claim in the clothes of a personal injuries claim to avoid the normal consequences of failure in litigation….
17. I respectfully think that this analysis is correct, the essential question being whether the claims advanced are for different forms of loss, one attributable to personal injury and the other not.
18. That being so, I consider that the circumstances of the present case do fall within the exception provided by CPR 44.16(2)(b). The issue is, therefore, how the discretion afforded by that provision should be exercised."
"2. The standard claim for damages for breach of duty under the DPA, or for misuse of private information, seeks damages for emotional and intangible harm, in the form of distress and intrusion only. It would be unconventional at the least to describe such a claim as one for 'damages for personal injury', falling within CPR 44.13(1). It would not qualify as such for limitation purposes, for instance, in ordinary language, such claims would be aptly described as claims "other than a claim to which this Section applies".
3. If HH Luba QC is correct, however, a standard or ordinary DPA or misuse claim ceases to be one 'other than a claim to which this section applies' once it incorporates a head of damages in the form of compensation or for personal injury. So, if a claimant says that a DPA breach caused them to suffer depression (see paragraph 37 of the Particulars of Claim), all their claims will fall within the scope of CPR 44.13(1), and they will do so even if that head of claim fails, as it did here.
4 The effects of such an interpretation are quixotic, and it is at least arguable they were not intended by the rule-makers …"
"48. Coming to CPR 44.16(2), the first issue is how to construe the words "a claim … other than a claim to which this Section applies". This wording is problematic, because "this Section applies", by operation of CPR 44.13(1), to "proceedings" not to "claims". But I agree with Morris J that the solution is obvious: CPR 44.16(2)(b) refers back to CPR 44.13(1), and thus to "proceedings which include a claim other than a claim for damages for personal injury.
49. Thus, CPR 44.16(2) applies in any proceedings where a claim has been made for damages for personal injuries as well as for something else (ie, as well as a claim other than a claim for damages for personal injury). This is a "mixed claim".
50. Once that point is resolved, the construction of CPR 44.16(2)(b) becomes clear. Mixed claims are within the scope of QOCS, by virtue of CPR 44.13(1). But CPR 44.16(2)(b) provides a mechanism to deal with mixed claims. The mechanism is quite simply to leave it to the Court at the end of the case to decide whether, and if so to what extent, it is just to permit enforcement of a defendant's costs order."
5. The Exception at CPR 44.16(2)(b)
5.1 The Proper Interpretation
5.2 The 'Literal' Interpretation
5.3 'Claim' to be read as 'Cause of Action'
"53. In my judgment, in each of these examples, proceedings in which claims were brought for those two different types of loss, namely the damage to property and the personal injury, would fall within CPR 44.16(2)(b), even though they arose out of essentially the same facts and out of one and the same breach of duty. Each claim would be for different types of loss (personal injury and non-personal injury) and in claims where damage is an essential element of the cause of action, would in fact arise from different causes of action. There is no basis for requiring the personal injury claim and the non- personal claim to arise out of either distinct facts or distinct breaches of duty. Indeed, it is inherently likely that they will arise out of the same set of facts. What is important ultimately is whether they are claims for different types of loss.
54. In the present case, and even assuming that the malfeasance breaches of duty, indistinctly, caused the psychological injury, there remains the very substantial claims for damages for something other than damages for personal injury. Even though those claims were caused by the same breaches of duty, in my judgment, there were claims "other than a claim for damages for personal injury". CPR 44.16(2)(b) therefore applies."
It follows from what I have already said that I agree with that analysis.
5.4 The Effect On Ordinary Claims For Personal Injuries
6. Access To Justice
6.2 Certainty
6.3 Deterrent Effect
Lord Justice David Richards:
Lord Justice McCombe:
Note 1 An argument I address in greater detail at paragraphs 34-42 below. [Back] Note 2 The Ministry of Justice has expressly said that, although the QOCS regime might be extended to other types of claim in the future, they remain to be convinced of the necessity of taking that step at present: see paragraphs 102 and 160 of the Post-Implementation Review of LASPO, February 2019, published by the Ministry of Justice. [Back] Note 3 Mr Jaffey conceded this at the hearing, in answer to a direct question from the court. [Back] Note 4 I take some comfort from the fact that this is also the view expressed by the learned authors of the Costs & Funding book in the passage identified at paragraph 28 above. [Back]