QOCS and 'mixed claims'
Sophie Khan considers the first case to involve qualified one-way costs shifting in relation to type 3 claims
The judgment handed down by Mr Justice Morris in the appeal matter of Robert Jeffreys v The Commissioner of the Police of the Metropolis on 4 May 2017 is the first time that the application of the civil procedure rules on qualified one-way costs shifting (QOCS) have been considered in relation to a type 3 'mixed claim'.
A type 3 'mixed claim' denotes a monetary claim for personal injury alongside a monetary claim for a non-personal injury. In Mr Jeffreys' case the personal injury claim was the exacerbation of his pre-existing paranoid schizophrenia and the swelling and bruising to his wrists. The monetary claim for non-personal injury was the malfeasance claims in false imprisonment, assault and battery, malicious prosecution, and misfeasance in public office.
The argument on behalf of Mr Jeffreys at the appeal was that there was no divisibility or severability between the malfeasance claims and the personal injury claims. First, the single joint expert had opined that his exacerbation had been caused by the actions of the officers in detaining, arresting, handcuffing, and prosecuting him, and, second, it was claimed that the swelling and bruising to his wrists were as a direct result of the handcuffing.
It was argued that as the malfeasance claims (or the non-personal injury element of the claim) caused the personal injury CPR rule 44.16(2)(b) not to apply as the claim could not be divided, as it was inextricably linked.
It was also argued that as the claim was dismissed, it was never the attention of the QOCS regime for an unsuccessful claimant to face the enforcement of an adverse costs order in the absence of an award for damages and/or interest. There had to be an award for damages and/or interest made in the claimant's favour before CPR rule 44.16(2)(b) could be considered.
Morris J, dismissed the appeal and found that the exception to the QOCS regime under the CPR did apply. He held that this was not a case were the non-personal injury element of the claim was inextricably linked to the personal injury claim. The malfeasance claim, he said were claims in their own right and that damages could have been awarded separately for those causes of actions, if the claim had succeeded.
He went on to say that the non-personal injury element of the claim could be inextricably linked, part and parcel of the personal injury claim, if there was no other non-personal injury claim for damages. This means that a claimant who brings a claim for malfeasance, which is inextricably linked to the personal injury claim, will not be subject to the provisions of CPR rule 44.16(2)(b) and no exception to QOCS will apply.
Although, this interpretation of a type 3 'mixed claim' limits the ability to seek redress for wrongs committed, if legal aid is unavailable, it does provide a level of certainty that did not exist beforehand.
In respect of the argument that there had to be an award for damages and/or interest made in the claimant's favour before the CPR rule could be considered. Morris J, held that there did not need to be a positive award before a court could order the enforcement of a costs order if made under CPR rule 44.16(2)(b).
QOCS at appeal
It was held that QOCS did apply to this appeal, as although the costs hearing was adjourned and listed on a separate date, the hearing was part of 'the proceedings'. This appeal, was an appeal against the costs order made at the costs hearing and as QOCS applied to that hearing, it followed that QOCS applied to an appeal against a costs order made in relation to 'the proceedings'.
This decision further supports the position that there is no divisibility or severability in the application of the QOCS regime when a decision in 'the proceedings' is appealed. The appeal is classed as being part and parcel of 'the proceedings'.