Kerry Underwood

QOCS AND MIXED CLAIMS

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These issues are dealt with in my book Qualified One-Way Costs Shifting, Section 57 Set-off available for £25.00 from Amazon here or me here.

In Robert Jeffreys v The Commissioner of the Police from Metropolis

the claimant failed in a claim for compensation for false imprisonment, assault and battery, malicious prosecution and misfeasance in public office.

He also claimed that these events had exacerbated his pre-existing condition of paranoid schizophrenia and caused swelling and bruising to his wrists and he also lost this part of the claim.

A Circuit Judge at first instance disapplied Qualified One-Way Costs Shifting in relation to 70% of the costs to reflect the fact that part of the claim was a personal injury claim protected by QOCS.

The Claimant appealed to the High Court which dismissed the appeal.

The High Court held that the personal injury and non-personal injury elements were divisible and that the malfeasance claims were claims in their own right and damages could have been awarded separately on that basis had the claim succeeded.

The judge said that where there was a single non-personal injury element of a claim that was inextricably linked to the personal injury claim, then QOCS would not be disapplied.

The first instance court, and the High Court, apparently relied on CPR 44.16(2) (b) and the whole of CPR 44.16(2) reads:

“(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.”

The High Court Judge here said that there was no authority, and nothing in the Civil Procedure Rules or White Book guidance or Civil Justice Council reports on Qualified One-Way Costs Shifting on this point.

Comment

The court appears not to have considered CPR 44.13 which states:

“(1) This Section applies to proceedings which include a claim for damages –

(a) for personal injuries;”

(My bold).

Clearly this claim did include a claim for damages for personal injuries and, in my view, should therefore have attracted the protection of Qualified One-Way Costs Shifting.

Having said that it is hard to see what CPR 44.16(2)(b) means if any claim including a claim for personal injuries is protected by QOCS.

Clearly the better wording in CPR 44.13(1) would have been:

(1) This Section applied to proceedings for damages –

(a) for personal injuries; …

 

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Written by kerryunderwood

August 23, 2017 at 8:31 am

Posted in Uncategorized

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