A litigant with a so-called ‘mixed claim’ should not be granted costs protection simply because an element of her case included a claim for personal injury, the Court of Appeal has ruled.
The claimant in Brown v Commissioner of Police of the Metropolis & Anor had sought damages for personal injury as well as for non-personal injury damages and other relief. Her claims for general damages for misuse of her personal data were upheld by the trial judge, but he rejected her claim for damages for personal injury.
The case before the Court of Appeal concerned the rules applied to qualified one-way costs shifting, which provides automatic costs protection to a claimant with a claim for personal injury, to ensure that – win or lose – they do not emerge with an adverse costs liability. This was an issue because the claimant, in the successful element of her claim, had failed to beat the defendants’ part 36 offer to settle, which would usually result in adverse costs orders.
Lord Justice Coulson ruled that the claimant could not automatically avoid the enforcement of those orders by relying on the QOCS regime and the fact one of her failed claims was for personal injury.
The judge said QOCS had been designed following the Jackson review to provide certainty for personal injury litigation, but in the usual run of civil litigation this level of certainty was not usual. To say otherwise would be contrary to the common law principle that costs follow the event.
‘[If] the claimant is making claims for damages or other relief which are unrelated to personal injury, then that certainty is generally not achieved,’ he said. ‘There is no existing statutory provision, no part of the Jackson review, and certainly no part of the CPR, which indicates that the certainty of automatic costs protection, in respect of claims for non-personal injury damages, was intended or required.’
Coulson LJ rejected the ‘deterrent argument’, which suggested that claimants considering bringing proceedings may be put off by his ruling. He insisted that the proceedings following the rejection of the part 36 offer were a waste of time and money for all parties, and the claimant should not be able to avoid the usual cost consequences of her conduct.
‘No wider considerations of access to justice, properly analysed, can make any difference to that conclusion,’ he added.