The status quo is unconscionable. Any government committed to upholding the rule of law must extend qualified one-way costs shifting to police claims.
Rachel Rothwell’s pessimism about the prospects of qualified one-way costs shifting (QOCS) protection being extended to claims against the police is puzzling and flawed in its reasoning (‘Will we see QOCS expanded to new areas?’).
Like the Civil Justice Council report which is the subject of her comment, she appears to recognise the ‘arguments of principle – based on access to justice and on the asymmetry of the relationship between the parties’ in favour of the proposed extension. However, her conclusion - that we are not in fact likely to see this happen - is based on an incomplete and incorrect understanding of work in this area of law.
First, Ms Rothwell speculates that an extension of QOCS protection to police law claims will ‘vastly increase the number of claims brought against the police – incurring public expense’. There is simply no evidence to support this assertion. In fact statistics for the numbers of cases brought before the abolition of after-the-event (ATE) recoverability in April 2013 show the relatively low numbers involved.
An average of 635 claims per year were brought against the Metropolitan Police Service (by some way the largest police force in the country) between 2006 and 2011. Notably, in practitioners’ experience most of our clients’ claims are funded by legal aid and so would not be covered by QOCS anyway. In contrast, 11,497 clinical negligence claims were brought against the NHS in 2014/15 alone.
Secondly, the writer speculates that an extension of QOCS protection to victims of police misconduct would ‘run the risk of the police being exposed to “have a go” litigation’. This is also incorrect; the QOCS scheme is designed to enable meritorious claims that would otherwise fall by the wayside. Safeguards already exist against unmeritorious claims.
For example, by virtue of Civil Procedure Rule 44.15, even where QOCS protection is available, costs may be ordered and enforced against the claimant to the full extent if the court finds that there were no reasonable grounds for bringing the proceedings, or that the proceedings amount to an abuse of the court’s process, or that this is otherwise justified as a result of unreasonable conduct by or on behalf of the claimant.
Moreover, in certain police cases, the court’s permission is required - pursuant to section 329 of the Criminal Justice Act 2003 or section 139 of the Mental Health Act 1983 - in order to bring a claim in the first place.
As Ms Rothwell acknowledges, the courts have recognised time and again the constitutional importance of citizens being allowed to pursue claims against the police as a means of protecting against unlawful or arbitrary use of police powers. The principle that the police are answerable to the rule of law is essential to help ensure that policing by consent remains a reality in this country. The alternative - placing untrammelled and unchallengeable power in the hands of agents of the state - does not bear thinking about.
In this light, the absence of QOCS protection has real consequences in practice. One only has to look at the case of DSD v Commissioner of Police  EWHC 436 (QB): this was a claim arising from the failure by the police to apprehend the notorious ‘black cab’ rapist John Worboys, where the courts were required to apply domestically the Strasbourg case law on article 3 of the European Convention on Human Rights – essentially placing positive obligations on the part of the police to conduct an effective investigation into criminal acts by non-state actors.
Significantly, this was a claim that was brought to trial under a pre-LASPO conditional fee agreement with the benefit of ATE protection for the claimants. Under the current costs regime, without ATE or QOCS protection, the claimants - and by extension other victims of serious crime - would have been denied an opportunity to expose and address significant police failings. Domestic law would have been left all the poorer.
In March 2014, the Police Action Lawyers Group (PALG), representing complainants in actions against the police throughout England and Wales, made submissions to the Civil Justice Council in support of the proposed extension of QOCS protection to our clients. Despite an express invitation to do so, neither the 43 police chief constables across England and Wales nor their legal representatives in the Association of Police Lawyers (APL) have chosen to respond in all this time.
But then, it is difficult to see how they might reasonably have proposed that only those poor enough to qualify for legal aid, or rich enough to afford to take the risk of litigation, should be able to bring to the attention of the courts the unlawful conduct of individual police officers or the legality of policing policies and practice.
In these circumstances, it is no wonder that the CJC has now confirmed that there are strong arguments of principle weighing in favour of extending the scope of QOCS protection (or something very similar) to claims against the police, and that principled arguments for not doing so have not been made out.
Given the social and constitutional importance of ensuring that abuses of power by state agents can be brought under the scrutiny of the courts, and in light of the CJC report, one ought to expect any government committed to upholding the rule of law to ensure that QOCS protection is now made available in this area without delay; the status quo is simply unconscionable.
Shamik Dutta is a partner at Bhatt Murphy and a member of the Police Action Lawyers Group