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Qualified one-way costs shifting (QOCS) and ‘mixed’ claims

October, 22, 2019

The issue

What costs protection under QOCS does a claimant have in a ‘mixed’ claim, i.e. one involving a claim for personal injury which is subject to costs protection and a non-personal injury claim which is not?

The facts

The claimant brought a mixed claim against the two defendants, arising from the misuse of private data. She was awarded general damages under the Data Protection Act and Human Rights Act, in the sum of £9,000, but her claim for personal injury was dismissed.

The defendants had made Part 36 offers in the total amount of £18,000. The claimant had therefore comprehensively failed to beat those offers. In consequence, the trial judge ordered the defendants to pay 70% of the claimant’s costs up to the date of the offers and the claimant to pay the defendants’ costs thereafter. However, the trial judge found that because her claims had included a claim for damages for personal injury, she was protected by the QOCS regime against any adverse costs orders in an amount higher than the £9,000 she had recovered.

The defendant appealed the trial judge’s decision to allow QOCS protection just because the claim had included a personal injury claim, despite the personal injury claim failing. The High Court judge allowed the defendant’s appeal. The claimant appealed to the Court of Appeal.

The outcome

Having reviewed the history of QOCS and the existing case law, the Court of Appeal set out guidance for the future.

The starting point was that QOCS protection only applied to claims for damages in respect of personal injuries. Such claims would include, not only the damages due as a result of pain and suffering, but also things like the cost of medical treatment and, in a more serious case, the costs of adapting accommodation and everything that went with long term medical care. In addition, a claim for damages for personal injury would also encompass all other claims consequential upon that personal injury, including, for example, a claim for lost earnings.

In personal injury proceedings, another common claim would be for damage to property. For example, in RTA litigation, there would usually be a claim for the cost of repairs to the original vehicle, and the cost of alternative vehicle hire until those repairs were effected. Such claims were not consequential or dependent upon the incurring of a physical injury: they were equally available to a claimant who survived the accident without a scratch as they were to a claimant who broke both legs in the accident. They were claims consequent upon damage to property, namely the vehicle that suffered the accident, and therefore fall within the mixed claim exception.

The fact that there was a claim for damages in respect of personal injury, and a claim for damage to property, did not mean that the QOCS regime suddenly became irrelevant. When dealing with costs at the conclusion of such a case, the fact that QOCS protection would have been available for the personal injury claim would be the starting point, and possibly the finishing point too, of any exercise of the judge’s discretion on costs. If (unlike the present case) the proceedings could fairly be described in the round as a personal injury case then, unless there were exceptional features of the non-personal injury claims the judge deciding costs would be expected to endeavour to achieve a ‘cost neutral’ result through the exercise of discretion. In most mixed claims of the type described, QOCS protection would – in one way or another – continue to apply.

Comment

In the typical personal injury claim, which includes a few items of non-injury related damage which the claimant fails to recover, QOCS protection is likely to continue to apply. Untangling the additional costs of the failed claim(s) will not be seen to be a necessary or worthwhile exercise. However, where the non-personal injury claim is clearly ‘stand-alone’ with a substantial element of costs attributable to it, it is more likely that a judge, in exercising his discretion, will disapply the QOCS protection.

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