The scope of the QOCS protection in mixed claims

31 Aug 2018

Commissioner of Police of the Metropolis v Andrea Brown: Chief Constable of Greater Manchester (Appellant) v Andrea Brown (Respondent) and Equality and Human Rights Commission (Intervener) [2018] EWHC 2046 (Admin)

The judgment handed down in this case on 31 July 2018 will have far reaching consequences for parties in litigation where the claim is a ‘mixed claim’ of both damages for personal injury and another type of claim.

The court has provided guidance on the extent to which QOCs applies in ‘mixed claims’ and the court’s discretion to permit the enforcement of costs.

CPR 44.13 is the provision setting out the effect of QOCs in personal injury, Fatal Accident Act claims and for death or personal injury under the Law Reform (Miscellaneous Provisions) Act 1934. It provides protection against costs orders except in certain limited circumstances, for instance, where conduct of the claimant is an issue, but also (see CPR 44.16 (2)(b) )where a claim is made ‘for the benefit of the claimant other than a claim to which this section applies’ i.e. not a claim falling within CPR 44.13.

This is the third High Court decision on this issue following the intervening decision of Morris J in Jeffreys v Commissioner of Police of the Metropolis [2017] EWHC 1505 (QB) and the decision of Siddiqui v Chancellor, Masters and Scholars of the University of Oxford [2018] EWHC 536 (QB) and offers defendants a much needed opportunity to maintain a balance in litigation and the recovery of costs.

Facts of the case

The claimant pursued a claim against her employers, the Metropolitan and Manchester Police Forces under four heads of loss:

  • breaches of the Data Protection Act 1998
  • breaches of the Human Rights Act 1998
  • misfeasance in public office
  • and the tort of misuse of private information

As part of her case on the four heads, Ms Brown claimed that she had suffered personal injury in the form of depression. At first instance, HHJ Luba QC held that the claimant had not suffered any recognised psychiatric injury and the breaches did not cause or materially contribute to any such injury as could be established. The Judge rejected the claim for aggravated or exemplary damages but found that the claimant had suffered distress sufficient to warrant an award of damages under s13(2) Data Protection Act 1998.

The claimant was eventually awarded the global sum of £9,000 for the successful parts of her claim. Both defendants had made Part 36 offers, which the claimant ultimately failed to beat and so she faced the prospect of a substantial adverse costs order, dwarfing the sum of her final award. Accordingly, the issue of costs was raised and the claimant sought QOCs protection.

The Judge held that since Ms Brown had advanced a claim including personal injury, she was entitled to QOCs protection pursuant to CPR 44.13, which is applicable to all personal injury proceedings. CPR 44.15 makes it clear that in such cases the court may only make an award for the payment of costs up to the level of damages and interest paid to the claimant. HHJ Luba ordered the defendants to pay 70% of the claimant’s costs up to the dates of their respective Part 36 offers and thereafter the claimant to pay the defendants’ costs. Neither defendant was able to enforce the order due to the finding that QOCS applied to the action.

The Appeal

On appeal, the appellants argued that the ‘mixed’ nature of the claim meant that the QOCs protection was not automatic. The respondent sought to uphold the original decision, supported by the Equality and Human Rights Commission (‘EHRC’), who were granted permission to intervene. The EHRC was of the view that QOCs ‘should be construed so as to provide certainty for claimants making personal injury claims that they would not be subject to adverse costs orders, even if ultimately unsuccessful, subject only to narrow exceptions.

In considering this case the Administrative Court looked at the evolution of QOCs and the purpose of the regime, which is to protect those who had suffered injury from adverse costs orders. The court referred to the decision in Wagenaar v Weekend Travel [2015]1 WLR in which it was held that the definition of a claim did not extend to the whole of the claim in proceedings where other claims were brought, e.g. in relation to property damage, and only applied to the personal injury element.

It was held that the claim fell within the r44.16(2) exception as the claimant advanced claims other than for personal injury and the Judge therefore had discretion to permit enforcement of the defendants’ costs to the extent that he considered it just to do so. It seems likely therefore that the court may give further rulings permitting the enforcement of costs orders not only against the claimant’s damages but also against the costs payable to her and be able to sue the claimant for any balance payable.


The court has clarified that personal injury claims, e.g. most clinical negligence claims, RTAs , slips and trips, accidents at work, claims under the Fatal Accidents Act 1976 or the Law Reform (Miscellaneous Provisions) Act 1934, are included in the QOCs regime and fall outside the scope of CPR 44.16(2).

The courts have been very much alive to the prospect that the QOCs protection might be open to abuse with non-personal injuries claims being ‘dressed up’ as personal injuries claims in order to take advantage of the QOCs regime. In the instant case, the court took the view that in a mixed claim the correct approach, by virtue of CPR 44.16(2)b, is to leave the issue to the court to decide at the conclusion of the case.

In claims of this nature, solicitors should put claimants on notice of the risk from the outset. Claimants are unlikely to be able claim the benefit of the QOCs shield for claims where the claim for personal injury is a relatively minor aspect of the claim and will be faced with uncertainty about the scope of the QOCs protection until the conclusion of the case.

The implications for claimants and defendants engaged in mixed claims are clear: there is an inherent risk to claimants in pursuing such claims for damages. The court does however have discretion to deal with the costs associated with such claims and this flexibility may lead to fairer costs outcomes for defendants.

Co-authored by Sarah Woodwark (partner), Laura Maddocks (solicitor advocate) and Aliyah Hussain (professional support FCILEx).

<< Back

Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

Related contacts

Sarah Woodwark

Sarah Woodwark


Who to contact

For more information about any of our news releases, please contact:

Natalie King
 +44 20 7638 2811
+44 20 7920 0361
Email Natalie

Semi Da-Cocodia
+44 161 236 2002
+44 161 838 6840
Email Semi

Jo Murray
+44 20 7638 2811
+44 20 7865 4849
Email Jo