Jeffreys v Commissioner of Police for the Metropolis  QBD (Judge Morris)
The claimant pursued a monetary claim for false imprisonment, assault and battery, malicious prosecution and misfeasance in public office. He also claimed for personal injury on the basis that the events had exacerbated his pre-existing schizophrenia and caused swelling and bruising to his wrists.
At trial the monetary and personal injury claims were dismissed and, following the dismissal of the claims, the defendant applied to disapply qualified one-way cost shifting (QOCS) under CPR, r. 44.16(2)(b) which provides an exception to QOCS where “a claim is made for the benefit of the claimant other than a claim to which this section applies”. As a result, a claim will be exempt from QOCS protection if it contains some other type of claim not ordinarily afforded protection by the QOCS regime, such as monetary claims where there is no personal injury element.
The judge at first instance could see no good reason why it was not just for CPR, r. 44.16(2)(b) to apply as an exception to QOCS, permitting the defendant to enforce their costs against the claimant.
The claimant appealed this decision on the basis that the judge did not have the discretion to apply the exception because the claim for personal injuries and the monetary claims were not divisible or severable from each other.
As a result, the judge ordered the claimant to pay the defendant's costs of the action, and permitted the defendant to enforce the costs order to the extent of 70%, attributing only 30% of the action to the personal injury element, which was afforded QOCS protection.
The court stated that CPR, r. 44.16(2)(b) was not clearly drafted but the phrase “other than a claim to which this section applies” had to be interpreted as a reference to proceedings other than a personal injury claim. The court concluded that the claimant had sought substantial damages that were not for personal injury and as a result there was no doubt that CPR, r. 44.16(2(b) was applicable.
Interestingly, the court noted that there was nothing in the White Book, CPR or the Civil Justice Council reports to support the claimant’s case that for CPR, r. 44.16(2)(b) to apply the personal injury and non-personal injury claims had to be divisible or severable. The court specifically concluded that divisibility of the personal injury and non-personal injury elements was not relevant to the QOCS exception applying.
In any event, the court held that the personal injury and non-personal injury elements were, in this case, divisible. The court also concluded that the malfeasance claims were claims in their own right and damages could have been awarded separately if the claims had succeeded.
The court held that if the personal injury and non-personal injury elements had to be divisible then this could lead to potentially absurd outcomes whereby a claimant would receive full QOCS protection even though the personal injury element of the claim could be very minor or ancillary to the claim.
As a result, the claimant’s appeal was dismissed and the defendant was able to enforce the costs order to the extent of 70%.
What this means for you
This is a rare case where the exception to QOCS pursuant to CPR, r. 44.16(2)(b) was considered and applied by the court.
This judgment may assist defendants with enforcing their costs against unsuccessful claimants in cases where the personal injury element of the claim is very minor or ancillary to the rest of the claim. For example, in housing disrepair claims, a tenant may pursue the landlord for loss of enjoyment and property damage arising out of damp or excessive dust, but may also claim for injury, such as an exacerbation of asthma. In these cases, the defendant could argue that the personal injury element was ancillary to the rest of the non-personal injury claim, but the claimant may in turn argue that the non-personal injury element e.g. damp or dust, was causative of the personal injury element and was therefore inextricably linked to the claim.
It will be interesting to see if there are any future cases where CPR, r. 44(16(2)(b) is considered by the court. As it stands, the wording of the exception is far from clear but it appears to be the case that QOCS will be disapplied in cases where the claim is only partially personal injury related and this element is incidental to the rest of the claim.