QOCS Applied To Mixed Claim Against Police | No Exceptional Features Found

Full Background And Decision

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Background

This case arose from an incident in April 2018 between Mr Afriyie and police officers from the City of London police force. Mr Afriyie was tasered and handcuffed by the officers, falling to the ground and hitting his head in the process.

Mr Afriyie brought claims against the Commissioner of Police for the City of London for assault, battery and misfeasance in public office relating to the officers’ actions. His claim was that the officers had no lawful justification for tasering and handcuffing him, making them liable in assault and battery. He also claimed that in using unlawful force on him, the officers had committed the tort of misfeasance in public office.

Mr Afriyie sought damages under various heads in respect of the incident. These included general damages for personal injury (covering his physical injuries and psychiatric harm), special damages (for medical costs and damage to clothing), and aggravated and exemplary damages. The aggravated and exemplary damages claims related to Mr Afriyie’s allegations that the officers had lied about the incident and unfairly sought to portray him as aggressive.

The Defendant argued the claims should be dismissed entirely, including on the basis that Mr Afriyie had been fundamentally dishonest.

After a trial, the court dismissed Mr Afriyie’s claims in full. It found the officers had been entitled to use force on Mr Afriyie and he had not established assault, battery or misfeasance. The court however rejected the Defendant’s fundamental dishonesty arguments.

The Defendant’s Position

The Defendant argued that the usual order should be made requiring Mr Afriyie, as the unsuccessful party, to pay the Defendant’s costs. This was consistent with the general rule in CPR 44.2(2)(a) that the unsuccessful party pays the costs of the successful one.

However, the Defendant accepted this was a ‘mixed claim’ where QOCS protection would have applied to the personal injury element. Therefore, under CPR 44.16(2)(b), the court had discretion whether to grant permission to enforce the costs order against Mr Afriyie.

The Defendant relied on Coulson LJ’s guidance in Brown v Commissioner of Police for the Metropolis [2020] 1 WLR 1257 that the starting point is QOCS protection, but the court can depart from this neutral approach if there are ‘exceptional features’ of the non-personal injury parts of the claim.

The Defendant argued the court should permit enforcement of the costs order up to 25% of total costs. It contended matters like Mr Afriyie rejecting settlement offers, pursuing a misfeasance claim unnecessarily, his conduct causing the incident, and inconsistencies in his evidence amounted to ‘exceptional features’ warranting departure from QOCS protection.

The Claimant’s Position

Mr Afriyie initially argued there should be no order as to costs. However, he accepted that as the unsuccessful party, the normal order would be for him to pay the Defendant’s costs.

Mr Afriyie agreed this was a ‘mixed claim’ where QOCS protection would have applied to the personal injury element. As such, under CPR 44.16(2)(b) the court had discretion whether to allow enforcement of costs against him.

Mr Afriyie also relied on Brown that in exercising this discretion, the starting point is that QOCS protection should be maintained to achieve a ‘cost neutral’ result. The court should only depart from this if there are ‘exceptional features’ of the non-personal injury parts of the claim.

Mr Afriyie argued there were no such ‘exceptional features’ here. Matters highlighted by the Defendant, like rejecting settlement offers and pursuing the misfeasance claim, were usual incidences of litigation rather than exceptional features. Even if exceptional, they did not relate solely to the non-personal injury parts of the claim.

Therefore, Mr Afriyie submitted the court should refuse permission to enforce costs against him and maintain QOCS protection in line with the guidance in Brown.

Could this fairly be described “in the round” as a personal injury case?

The judge, Mrs Justice Hill, first had to consider whether the case could fairly be described “in the round” as a personal injury case.

The Defendant had argued that the fact Mr Afriyie brought a misfeasance claim, in addition to assault and battery, meant this was not solely a claim for personal injuries. However, applying the reasoning in Brown, namely that for the purposes of determining whether a claim is a personal injury claim, the term ‘claim’ refers to heads of loss rather than causes of action, the judge held that the fact Mr Afriyie included a misfeasance claim did not automatically preclude the proceedings being treated as a personal injury claim.

This was because the misfeasance claim clearly related to and arose from the officers’ acts which were said to have unlawfully caused personal injury to Mr Afriyie. Specifically, the alleged misfeasance was the officers’ acts in threatening and causing harm to Mr Afriyie without lawful justification.

Therefore, the judge concluded that the mere fact Mr Afriyie included a misfeasance claim in addition to assault and battery did not mean the proceedings as a whole could not still fairly be characterised as a personal injury claim. The misfeasance claim was tied to the alleged acts inflicting injury. The judge considered it more helpful to focus on the different heads of damages Mr Afriyie had claimed, in determining the essential nature of the case. The relevant heads of damages were:

• General damages for personal injury, including for pain and suffering resulting from physical injuries (head, back, knee) and psychiatric injuries
• Special damages, but only insofar as these related to the costs of medical treatment
• Basic damages for assault and battery
• Aggravated damages
• Exemplary damages

The judge readily found that the general damages for personal injury pain/suffering and the special damages linked to medical costs were clearly claims in respect of personal injury.

The basic damages for assault/battery were very modest and not a significant part of the overall claim. The judge considered it unlikely the claim would have been brought if this limited claim was the sole basis.

Although the aggravated and exemplary damages claims were substantial in terms of the overall value of the claim, the judge found they flowed directly from the officers’ alleged assault/battery and infliction of personal injuries on Mr Afriyie. The issues underpinning these claims were also relevant to core liability issues, like whether the officers had fabricated accounts.

Looking at the claim as a whole, the judge considered the tasering of Mr Afriyie was the heart of the matter and had allegedly caused physical/psychiatric injury. While the aggravated/exemplary claims related to matters making this experience worse, they stemmed from the personal injury sustained.

In light of this analysis, the judge concluded that, looking at the proceedings ‘in the round’, the claim could fairly be described as a personal injury case. The non-personal injury claims were not substantial enough to displace this overall characterisation. The proceedings were centrally concerned with Mr Afriyie’s alleged assault/battery and the personal injuries claimed to have resulted.

MRS JUSTICE HILL:

1. 1. The claims for basic damages for assault and battery under (i) above were not claims in respect of personal injuries. However, they reflected a modest part of the Claimant’s claim. They would have merited a total award of £1,500 had the claims succeeded: see [118]-[119] of the liability judgment. I accept Mr Hughes’ submission that it is unlikely that the case would have been litigated if this was the extent of the Claimant’s claim. Mr Ley-Morgan placed no reliance on this factor in his submissions.

1. 1. Similarly, the claims for aggravated and exemplary damages under (iv) and (v) above did not “relate to, nor require proof of, any personal injury”; rather they are “further heads of claim of punitive and compensatory damages respectively”: Jeffreys v Commissioner of the Metropolis [2017] EWHC 1505 (QB), [2018] 1WLR 3633 at [42], per Morris J.

1. 1. These claims were a substantial part of the claim in terms of its overall value. In his opening submissions, Mr Hughes contended that no less than £10,000 would be appropriate in aggravated damages and no less than £50,000 in exemplary damages; whereas he sought awards of £7,000 for the Claimant’s head injuries; £5,000 and £6,000 for his back and knee injuries respectively; and somewhere towards the lower end of the £23,150 to £59,860 range for his psychiatric injuries.

1. 1. However, the grounds on which both aggravated and exemplary damages were sought, as set out at [149]-[154] and [158] of the liability judgment, all flowed from the actions of the Defendant’s officers in tasering and handcuffing the Claimant, thereby causing him personal injuries, and then, on his case, lying about it, and unfairly cross-examining him about his belief that the officers’ actions had been motivated by his race.

1. 1. Further, as Mr Hughes highlighted, the issues underpinning the claims for aggravated and exemplary damages were matters that the court would have had to consider in any event, as they were relevant to the primary issues of liability for assault, battery and misfeasance: for example, whether the officers had fabricated their accounts was relevant to whether their stated beliefs in the need to use force were honest, and reasonable, and were thus relevant to liability.

1. 1. As noted at [53] of the liability judgment, the assault claim based on the act of tasering the Claimant was the most serious of his assault claims. In my judgment it was that act which was at the heart of the case, and the claims for aggravated and exemplary damages related largely to matters which made the Claimant’s experience of being tasered worse and/or the actions of both parties in seeking to explain the tasering after the event. The act of tasering the Claimant was one that did cause him personal injuries and involved the use of potentially lethal force on him: see [70] of the liability judgment.

1. 1. For these reasons I consider that the claim was, in the round, one for personal injuries.

Were there any “exceptional features” of the non-personal injury claims?

Having concluded this was essentially a personal injury case, the judge moved on to consider whether there were any exceptional features of the non-personal injury parts of the claim that could warrant a departure from the starting point that QOCS protection should be maintained to achieve a ‘cost neutral’ outcome.

Coulson LJ held in Brown that exceptional features in the non-personal injury claims could lead the court to depart from QOCS protection and allow enforcement of costs against the claimant. The Defendant’s submissions were not directed to the question of whether there were any exceptional features of these claims, but instead that the following matters should be taken into account in the exercise of the general costs discretion under CPR r 44.2:

(i) The Claimant’s rejection of three (non-Part 36) offers by the Defendant to settle the claim on a “drop hands” basis, leading to the wasted costs of the trials;

(ii) The fact that the Claimant did not limit his assault claim to the argument that the use of the taser was not objectively reasonable but instead made extremely serious allegations of bad faith and corruption on the part of the police officers;

(iii) The Claimant’s pursuit of a misfeasance claim which added nothing to the other claims (see [116] of the liability judgment) and which should therefore have been withdrawn;

(iv) The Defendant’s success on all the issues;

(v) The finding that the Claimant’s conduct caused or at least contributed to the incident (see [155] of the liability judgment);

(vi) The “significant similarities” in the statements of the Claimant, Mr Cole and Mr Grant (see [153] of the liability judgment);

(vii) The finding that the Claimant had been dishonest on the issue of whether he had cooperated with the breath test procedure (see [171] of the liability judgment); and

(viii) The interview the Claimant gave to The Guardian before the first trial (see [150] of the liability judgment), which was an unacceptable attempt to pressure the Defendant to settle the claim, and his pursuit of an exemplary damages claim on the basis that it was grossly offensive for him to be cross examined about it.

The judge however found these were not exceptional features of the non-personal injury claims, specifically:

• • Rejecting settlement offers was an incidence of litigation, not exceptional.
  • Pursuing the misfeasance claim added to costs but was not exceptional.
  • Inconsistencies in Mr Afriyie’s evidence were also not exceptional.
  • Mr Afriyie’s conduct was relevant to potential damages, not whether he was wrong to litigate.
  • The Defendant had also failed on fundamental dishonesty.

Even if these were exceptional features, she found, they did not relate solely to the non-personal injury parts of the claim.

The judge concluded there were no exceptional features of the non-personal injury claims that justified departing from the starting point of QOCS protection for personal injury claims established in Brown v Commissioner of Police for the Metropolis. The matters raised by the Defendant were usual litigation events and applicable to the personal injury claims too.

MRS JUSTICE HILL:

1. 1. On that basis, applying Brown at [57], the “starting point” for the exercise of the discretion is that QOCS protection would have been available for the personal injury claim, and it is expected that a ‘cost neutral’ result would be achieved through the exercise of the discretion unless there are “exceptional features of the non-personal injury claims”.

1. 1. I remind myself that in Brown at [57] Coulson LJ gave as an example of the sort of matter that might constitute an exceptional feature of a non-personal injury claim “gross exaggeration of the alternative car hire claim”.

1. 1. As noted at [22]-[24] above, the only “non-personal injury” claims pursued by the Claimant in this case related to (i) basic damages for assault and battery; (ii) special damages for his clothing; and (iii) aggravated and exemplary damages.

1. 1. Mr Ley-Morgan’s submissions were not directed to the question of whether there were any exceptional features of these claims. Instead he submitted that the following matters should be taken into account in the exercise of the general costs discretion under CPR r 44.2:

(i) The Claimant’s rejection of three (non-Part 36) offers by the Defendant to settle the claim on a “drop hands” basis, leading to the wasted costs of the trials;

(ii) The fact that the Claimant did not limit his assault claim to the argument that the use of the taser was not objectively reasonable but instead made extremely serious allegations of bad faith and corruption on the part of the police officers;

(iii) The Claimant’s pursuit of a misfeasance claim which added nothing to the other claims (see [116] of the liability judgment) and which should therefore have been withdrawn;

(iv) The Defendant’s success on all the issues;

(v) The finding that the Claimant’s conduct caused or at least contributed to the incident (see [155] of the liability judgment);

(vi) The “significant similarities” in the statements of the Claimant, Mr Cole and Mr Grant (see [153] of the liability judgment);

(vii) The finding that the Claimant had been dishonest on the issue of whether he had cooperated with the breath test procedure (see [171] of the liability judgment); and

(viii) The interview the Claimant gave to The Guardian before the first trial (see [150] of the liability judgment), which was an unacceptable attempt to pressure the Defendant to settle the claim, and his pursuit of an exemplary damages claim on the basis that it was grossly offensive for him to be cross examined about it.

1. 1. In fairness to the Defendant, I have considered whether any of these matters can properly be considered “exceptional”. I have concluded that they cannot.

1. 1. In my judgment, matters (i)-(iv) above reflect nothing more than the usual incidences of litigation, where one party chooses to litigate a claim in a certain way but is unsuccessful. These matters have contributed to the usual order for costs, namely that the Claimant should pay the Defendant’s costs, but they are not exceptional for the purposes of the CPR r 44.16(2)(b) discretion.

1. 1. Further, matter (iv) must be seen in the context of the Defendant failing on a key element of her defence, namely that relating to fundamental dishonesty (see section 7 of the liability judgment): she was not, therefore, successful on “all” the issues as Mr Ley-Morgan contended. The fundamental dishonesty issue itself added to the time and costs of the second trial.

1. 1. Matter (v) was relevant to the quantum of damages the Claimant would have recovered had his claim succeeded, but does not mean he was so wrong to litigate the claim that it is an “exceptional” feature of the litigation.

1. 1. Matter (vi) has to be seen in the context of the fact that precisely the same finding was made against the Defendant’s own officers: see [85] of the liability judgment, where it was found that the totality of the officers’ evidence created “a justified concern…that the officers had colluded together to deliberately exaggerate the Claimant’s conduct to make him appear more aggressive than he had in fact been”; and where it was noted that the Defendant had chosen not to call any of these officers as witnesses at trial.

1. 1. Matter (vii) was explored fully in the context of the Claimant’s exemplary damages claim: see [150]-[152] of the liability judgment. By giving an interview that was inconsistent with his pleaded case the Claimant exposed himself to a risk of cross-examination, but I am not willing to make the finding sought by the Defendant as to his motives for doing so, or to conclude that this conduct was “exceptional” for these purposes.

1. 1. Even if any of these matters could properly be said to be exceptional, they do not relate exclusively to the non-personal injury claims, but were applicable to the personal injury claims too.

1. 1. I do not therefore consider that there are any exceptional features of the non-personal injury claims, such that a ‘cost neutral’ result through the exercise of the discretion is appropriate, applying Coulson LJ’s guidance in Brown at [57].

Conclusion

1. 1. For the reasons set out herein I order that the Claimant shall pay the Defendant’s costs, to be assessed if not agreed, but permission to enforce those costs under CPR r 44.16(2)(b) is refused. It follows that the Defendant’s application for a payment on account of costs is also dismissed.