Does QOCS Protection Extend to a Personal Injury Claimant’s other Claims?
Park Square BarristersThe limitations of QOCS – the enforceability of costs in non –personal injury claims where a personal injury claim has been brought within the same proceedings?
As the brave new world of QOCS establishes itself, a number of questions have arisen. Does the inclusion of a personal injury claim within proceedings guarantee that the Claimant can rely on the QOCS provisions to ensure no costs orders can be enforced against him at all (even relating to non-personal-injury claims on which he has been unsuccessful). And can a Claimant making a non personal injury claim take advantage of another Claimant’s costs protection by issuing his or her claim within the same proceedings? The drafting of the Civil Procedure Rules is unclear. Judy Dawson, a specialist in insurance fraud and insurance indemnity issues, reflects on recent case law.
The Interpretation of CPR 44.13
CPR 44.13 was probably originally devised to be clear and succinct;
(1) This Section applies to proceedings which include a claim for damages –
(a) for personal injuries;
At first blush the use of the word “proceedings” would seem to provide QOCS protection to any claim in any proceedings in which there was a claim for damages for personal injury. It seems doubtful whether this would have been the intention of the legislators whose remit seemed clearly to be limited to personal injury claims. Why should a Claimant who brought an unsuccessful action for (for example) malicious prosecution have to pay the costs of the Defendant whilst had he also brought an unsuccessful claim for personal injury as well, QOCS protection would be afforded in relation to the costs of both claims? More pertinently in practice (and certainly arising more frequently) why should the owner of a vehicle who brought a claim for damage and credit hire arising out of an accident have to pay the costs of the Defendant in the happenstance that the driver was not injured or that his claim was swiftly settled, but not if the driver was able to bring his claim for personal injury within the same proceedings.
It would seem that certainly Mr Justice Edis was of no doubt that such QOCS was not designed to apply to credit hire cases. In Stephens v Butler [2016] EWHC 1251 QBD in which he was asked to deal with the question of whether QOCS protection applied to a subsequent appeal in relation to the personal injury damages, he had little difficulty in holding that “proceedings” as defined by CPR 44.13 included a subsequent appeal in relation to such personal injury claim, dismissing an authority put before him on costs of appeals as irrelevant as;
“That observation was made in the context of credit hire litigation where the parties were proxies for commercial organisations seeking to use the costs regime to their best advantage in what Aikens LJ memorably called “the saecular war” between the credit hire industry and the motor insurance industry. QOCS was not designed to have any relevance to parties of this type”.
The fact that either the legislature or the judiciary do not think that such protection SHOULD apply to non-personal injury claims is of little relevance if the only possible interpretation of the Rules is that such protection IS extended however.
The Court of Appeal have considered the interpretation of CPR 44.13 in the case of Wagenaar v Weekend Travel Limited (t/s Ski Weekend) & Nawelle Serradj (third party) [2014] EWCA Civ 1105. In this case the Claimant was severely injured in a ski-ing accident and brought proceedings against the holiday company involved. They defended the action but as an alternative brought in the ski instructor as a third party stating that if they were found liable, her negligence was the more proximate cause and she should pay a contribution or indemnity. At trial the Claimant’s claim against the holiday company was dismissed however the subsequent costs order could not be enforced due to QOCS protection. The trial Judge also dismissed the holiday company’s claim against the ski instructor and also stated that such costs order could not be enforced against it as the holiday company was also protected by the QOCS regime as the proceedings were ones in which a claim for personal injury had been made pursuant to CPR 44.13.
The Court of Appeal considered a number of points but were very clear that on this particular point the Judge had made a mistake and had wrongly interpreted CPR 44.13.
At paragraph 38 of the leading judgment given by LJ Vos he states
“In my judgment, the proper meaning of the word “proceedings” in CPR Part 44.13 has to be divined primarily from the rules on QOCS themselves. The whole thrust of CPR Rules 44.13 to 44.16 is that they concern claimants who are themselves making a claim for damages for personal injuries, whether in the claim itself or in a counterclaim or by an additional claim (as defined in CPR Rule 20.2(2)). This can be seen from a number of the provisions including the following:-
- i) CPR Rule 44.13 refers to an estate on behalf of which such a claim is brought. This is obviously intended to include estates bringing claims under the Fatal Accident Act 1976. ii) CPR Rule 44.14(1) allows costs orders to be enforced to the extent that damages and interest have been awarded to the claimant. The implication is that QOCS is about claimants who may have obtained an award of personal injury damages.
iii) CPR Rule 44.14(3) provides that a partially enforced award of costs shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record. This provision seems to be aimed at relieving individuals from the adverse economic consequences of having an unsatisfied costs judgment recorded against them.
- iv) CPR Rules 44.15 and 44.16 allows costs to be enforced when a claim is struck out as an abuse or for obstructive conduct, or when a claim is fundamentally dishonest or brought for the benefit of a third party. The implication is that the provision is intended to deter the bringing of false or fraudulent personal injury claims. These provisions do not seem particularly directed at disputes between commercial parties or insured parties as to the ultimate responsibility for funding personal injury damages”.
This seems to make it very clear that, whilst the Court of Appeal have not specifically considered the point, such protection only applies to a Claimant who is bringing a personal injury claim, not any other party in proceedings who are not bringing personal injury claims (therefore ruling out the owner of a vehicle who is bringing a vehicle damage/credit hire claim).
However LJ Vos also went on seemingly to extend costs protection to ALL claims brought by a Claimant
- It is true, however, that the word “proceedings” in CPR Rule 44.13 is a wide word which could, in theory, include the entire umbrella of the litigation in which commercial parties dispute responsibility for the payment of personal injury damages. I do not think that would be an appropriate construction. Instead, I think the word “proceedings” in CPR Part 44.13 was used because the QOCS regime is intended to catch claims for damages for personal injuries, where other claims are made in addition by the same claimant. There may, for example, in the ordinary road traffic claim, be claims for damaged property in addition to the claim for personal injury damages, and the draftsman would plainly not have wished to allow such additional matters to take the claim outside the QOCS regime.
- Thus, in my judgment, CPR Rule 44.13 is applying QOCS to a single claim against a defendant or defendants, which includes a claim for damages for personal injuries or the other claims specified in CPR Rule 44.13(1)(b) and (c), but may also have other claims brought by the same claimant within that single claim. Argument has not been addressed to the question of whether QOCS should apply to a subsidiary claim for damages not including damages for personal injuries made by such a claimant against another defendant in the same action as the personal injury claim. I would prefer to leave that question to a case in which it arises. CPR Rule 44.13 is not applying QOCS to the entire action in which any such claim for damages for personal injuries or the other claims specified in CPR Rule 44.13(1)(b) and (c) is made.
My own view is that LJ Vos could have additionally cited CPR 44.16(2)(b) in support of his contention that CPR 44.13 was meant to apply to all claims brought by a Claimant, not just ones relating to personal injury; if CPR 44.13 was meant to refer to only personal injury claims, it rendered CPR 44.16(2)(b) otiose and nonsensical.
The proper interpretation of CPR 44.16(2)(b)
The Court of Appeal having decided that CPR 44.13 limited QOCS costs protection to Claimants who had themselves brought personal injury claims but that such costs protection extended to other (non personal injury) claims brought by the same Claimant, Defendants are left to look at obtaining permission to enforce costs order pursuant to CPR 44.16. In the event that fundamental dishonesty is not found, CPR 44.16(2)(b) may prove to be the Defendant’s answer in claims which go beyond personal injury claims;
(2) Orders for costs made against the claimant may be enforced up to the full extent of such orders with the permission of the court, and to the extent that it considers just, where –
(b) a claim is made for the benefit of the claimant other than a claim to which this Section applies.
This question was raised on appeal in Jeffreys v Commissioner of Police for the Metropolis (2017). Following the Claimant’s unsuccessful claim against the police for assault, false imprisonment, malicious prosecution and misfeasance in public office, the trial Judge decided that the exception to qualified one-way costs shifting in CPR r.44.16(2)(b) applied. Significant parts of the claim were not for personal injury, and there was no requirement that the personal injury and non-personal injury aspects of the claim should be divisible for r.44.16(2)(b) to apply. In those circumstances the Defendant was given permission to enforce its costs order against the Claimant to the extent of 70%. The Claimant appealed.
The proceedings arose out of the Claimant’s arrest and detention on suspicion of harassment. He was acquitted, and he brought a claim against the police for damages, including aggravated and exemplary damages, for assault, false imprisonment, misfeasance in public office and malicious prosecution. He alleged that the police had provided concocted evidence to the Crown Prosecution Service. He claimed that he had suffered pain, distress, anxiety and loss of liberty, and specifically alleged that he had suffered soft tissue injuries to his hands, and that the police’s actions had exacerbated his paranoid schizophrenia. The Claimant submitted that the exception to QOWCS under r.44.16(2)(b) only applied if the non-personal injury heads of claim were divisible or separable from the personal injury heads; in his claim that was not the case, because the claim was that the relevant actions by the police had caused the personal injuries.
HHJ Morris held that CPR 44.16(2)(b) was not clearly drafted. To give meaning to the phrase “other than a claim to which this Section applies”, it had to be interpreted as a reference to proceedings other than a personal injury claim. Clearly the appellant had sought substantial damages other than for personal injury. Claims such as in malfeasance were actionable without proof of damage. The claim included for loss of liberty, fear and upset: they did not relate to personal injury. There was no doubt that r.44.16(2)(b) applied. There was no authority, and nothing in the CPR or White Book guidance or the Civil Justice Council’s reports, to support the appellant’s proposition that for r.44.16(2)(b) to apply, the personal injury and non-personal injury claims had to be divisible, LL v Lord Chancellor (9/12/2015) unreported and Howe v Motor Insurers’ Bureau [2016] EWHC 884 (QB) considered. The judge had been correct to decide that he had power to order as he had under r.44.16(2)(b). Once that was established, there was no issue as to the exercise of his discretion.
The Current State of the Law
A Claimant is entitled to QOCS protection pursuant to section 44.13 if he brings claims which include claims for personal injury (Wagenaar v Weekend Travel Limited (t/s Ski Weekend) & Nawelle Serradj (third party) [2014] EWCA Civ 1105).
It would appear that a Claimant who does not bring a claim for personal injury but who issues his or her claim in the same proceedings as a Claimant who does bring a claim for personal injury does not have the benefit of such QOCS protection (Wagenaar v Weekend Travel Limited (t/s Ski Weekend) & Nawelle Serradj (third party) [2014] EWCA Civ 1105 – but such comments would appear to be obiter and moreover the Court of Appeal did not appear to have been addressed on such issue which was not relevant to the appeal).
Irrespective of both of the above however, where a claim for non personal injury is pursued within proceedings for personal injury (whether by the same Claimant or a different one) the Court may give permission for a costs order in relation to the same to be enforced pursuant to CPR 44.16(2)(b).