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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Police of the Metropolis v Brown [2018] EWHC 2471 (QB) (31 July 2018) URL: https://www.bailii.org/ew/cases/EWHC/QB/2018/2471.html Cite as: [2018] EWHC 2471 (QB) |
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QB/2017/0206 |
QUEEN'S BENCH DIVISION
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE COMMISSIONER OF POLICE OF THE METROPOLIS |
(First) Appellant and Defendant |
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- and – |
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ANDREA BROWN |
Respondent and Claimant |
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AND |
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THE CHIEF CONSTABLE OF GREATER MANCHESTER POLICE |
(Second) Appellant and Defendant |
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-and- |
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ANDREA BROWN |
Respondent and Claimant |
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-and- |
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THE EQUALITY AND HUMAN RIGHTS COMMISSION |
Intervener |
____________________
Ms Charlotte Ventham (instructed by Clyde & Co LLP) for the Second Appellant and Defendant
Ms Claire Darwin and Mr Paul Skinner (instructed by Thomas Mansfield Solicitors Ltd) for the Respondent and Claimant
Ms Nathalie Lieven QC and Mr Raj Desai (instructed by The Equality and Human Rights Commission) for the Intervener
Hearing dates: 4th July 2018
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Crown Copyright ©
Mrs Justice Whipple :
INTRODUCTION
BACKGROUND FACTS
QOCS
(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,
...
" '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".
(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 –
…
(b) a claim is made for the benefit of the claimant other than a claim to which this Section applies.
"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."
CASE LAW
36 I should start by referring briefly to the Jackson report, pursuant to which QOCS was introduced. I shall not repeat here the careful discussion in Chapters 9 and 19 of the Jackson report. Suffice it to say that the rationale for QOCS that Jackson LJ expressed in those sections came through loud and clear. It was that QOCS was a way of protecting those who had suffered injuries from the risk of facing adverse costs orders obtained by insured or self-insured parties or well-funded defendants. It was, Jackson LJ thought, far preferable to the previous regime of recoverable success fees under CFAs and recoverable ATE premiums. There is nothing in the Jackson report that supports the idea that QOCS might apply to the costs of disputes between those liable to the injured parties as to how those personal injury damages should be funded amongst themselves.
38 … The whole thrust of CPR rr 44.13 to 44.16 is that they concern claimants who are themselves making a claim for damages for personal injuries, whether in the claim itself or in the counterclaim or by an additional claim …
39 It is true, however, that the word "proceedings" in CPR r 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 r 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 r 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 r 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 r 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 r 44.13(1)(b) and (c) is made.
9 Thus, from the claim form and the particulars of claim, it is clear that by this action the claimant was seeking damages in respect of four distinct causes of action (assault, false imprisonment, malicious prosecution and misfeasance in public office). It is further clear that the claimant was seeking damages in respect of personal injuries to himself (both physical and psychological) and, importantly, that he was also seeking damages in respect of other loss (including loss of liberty and distress, humiliation, fear and upset, i e, sub-paragraphs (a) and (d) of the particulars of loss); and he was also seeking aggravated and exemplary damages.
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 CPR 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".
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.
43 In my judgment, and in agreement with the judge, it is clear that, even leaving out of account the claims in respect of the soft tissue damage and the exacerbation of the psychological condition, the claimant was advancing distinct claims for damages relating to other matters. In other words, claims other than claims for damages for personal injury. Accordingly, subject to the divisibility argument, there is no doubt that in this case CPR r 44.16(2)(b) applied.
44 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 r 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 this. 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 r 44.16(2)(b) applies.
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.
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.
In my view, the interpretation of this provision, as decided in Jeffrey, is clear and the converse is not reasonably arguable.
MS BROWN'S PLEADED CASE
THE COSTS JUDGMENT
GROUNDS OF APPEAL
i. Mischaracterisation of the claims under the DPA, the HRA and the tort claim for misuse of private information as personal injury claims, simply because they were pleaded as such; on a proper characterisation, they were not personal injury claims at all;
ii. Conflation producing a result likely to be contrary to the intention of the rules, by permitting a person who brings a mixed claim with personal injury and non-personal injury elements automatically to enjoy QOCS protection in relation to all aspects of the claim;
iii. Discretion rendered otiose, because if the Judge was right, there was no reason to have the discretion at CPR 44.16(2) (b) at all;
iv. Proper construction, because properly construed, CPR 44.16(2)(b) confers a discretion on the Court to permit enforcement in relation to costs of other aspects of the claim – relating to the DPA, the HRA, the claim for misfeasance and the alleged tort of misuse of private information – which are claims "other than a claim to which this Section applies".
RESPONSE TO GROUNDS OF APPEAL
i. Properly construed, Section II of Part 44 applies not just to a claim for personal injuries as the Judge held, but to any proceedings in which there is a claim for damages for personal injuries; thus, Section II would extend to a case where a separate claim for damages for personal injury was made within the same proceedings.
ii. Further, CPR 44.16(2)(b) only applies to claims made for the benefit of the Claimant which are outside the scope of Section II of CPR 44.
INTERVENTION
ANALYSIS
i. If the answer is no, then QOCS protection applies automatically (subject of course to one of the other exceptions applying, where the case is struck out or dishonesty is found).
ii. If the answer is yes, then the case is subject to the court's discretion under CPR 44.16(2)(b).
RESPONSE TO MS BROWN AND EHRC
CONCLUSION