Court of Appeal Clarifies Recovery of Success Fees and QOCS in Hybrid Personal Injury and Media Claims

BIRLEY & BELL (PERSONAL REPRESENTATIVES OF THE ESTATE OF MS ROSA TAYLOR) V HERITAGE INDEPENDENT LIVING LTD & OTHERS [2025] EWCA Civ 44

Court of Appeal confirms claimants can recover success fees and use Qualified One-Way Costs Shifting (QOCS) simultaneously in mixed personal injury and media claims, rejecting arguments of procedural abuse in complex data protection case involving pre-action correspondence.

“[91] … I am quite satisfied, looking at the statements of case, that no matter how this case may have been presented in the pre-action protocol letters, this is squarely a claim for personal injury where the main and substantial loss which is alleged psychiatric injury. Stepping back, one would characterise this matter both broadly and as a matter of detail as a claim for personal injury.”

Citations

Aktas v Adeptas [2010] EWCA Civ 1170 A negligent failure to serve a claim form on time does not, without significant additional factors, amount to an abuse of process capable of justifying a strike out under the Civil Procedure Rules. Brown v Commissioner of Police of the Metropolis [2019] EWCA Civ 1724 In mixed claims involving personal injury and other heads of loss, the court retains discretion under CPR 44.16(2)(b) to decide the extent to which costs protection under QOCS is disapplied. Cable v Liverpool Victoria [2020] EWCA Civ 1015 Pre-action protocol compliance forms an integral part of maintaining the integrity of legal processes, but failures to comply, without more, do not automatically justify a strike out unless the breach is glaring or prejudicial. Hunter v Chief Constable of West Midlands Police [1982] AC 529 Abuse of process occurs where the proceedings are oppressive, unjustifiably duplicative, or undermine the court’s authority, requiring the exercise of the court’s inherent jurisdiction to prevent a misuse. Aldi Stores v WSP Group [2008] 1 WLR 748 A court’s determination of whether conduct constitutes an abuse of process is a factual judgment that must satisfy established criteria and is either right or wrong without being discretionary. Singh v Dass [2019] EWCA Civ 360 The introduction of a point on appeal not explored or developed in previous hearings warrants caution and is usually disallowed unless exceptional circumstances justify its inclusion. Associated Newspapers v the United Kingdom (No. 37398/21), ECHR judgment 24 November 2024 Addressed the implications of the recoverability of CFA success fees in media cases; its relevance was noted for the broader context of costs recoverability in claims involving privacy proceedings.

Track allocation housing disrepair CPR 46.13 settlement sum costs restriction SCCO

MRO fee markup cap 25% detailed assessment personal injury Senior Courts Costs Office

Security for costs refused CPR 25.27 very high probability success excessive estimate King's Bench

IPEC scale costs transfer Patents Court PD 30 para 9.2 costs caps Court of Appeal

Costs budget variation CPR 3.15A promptness significant development unfair prejudice Chancery Division

Costs budgeting inter partes proportionality high hourly rates AI disclosure Patents Court CPR 3E

Beneficiary personal liability section 71(3) Solicitors Act 1974 indemnity costs VAT self-supply SCCO

Summary assessment indemnity costs unless order payment on account disclosure default Chancery Division

Provisional assessment set aside CPR 3.1(7) points of dispute filing duty PD 47 para 14.3 SCCO

Fixed recoverable costs police claims CPR 26.9(10)(e) intentional tort exemption

Key Points

The Qualified One-Way Costs Shifting (QOCS) regime applies to claims for damages for personal injuries, regardless of the specific legal cause of action underpinning the claim, provided the claim includes a claim for personal injury damages. [35, 57, 59]
A failure to comply with pre-action protocols does not amount to an abuse of process unless the conduct demonstrates a wholesale disregard of rules or an intentional, contumelious act. The court is reluctant to strike out claims absent extreme circumstances of procedural abuse. [44-50]
Claims involving allegations of personal injury within a broader media or privacy claim framework do not inherently disapply QOCS protections, provided the main context of the action aligns with the personal injury claim. [57, 59]

The existence of alternative exceptions to QOCS enforcement (such as “mixed claims” under CPR 44.16) must be explicitly pleaded and argued. A court will not import these considerations without specific reference to and reliance on the relevant rule. [21, 39]
Where costs orders are sought to be enforced under exceptions to QOCS, defendants should give precise notice of the argued basis for disapplying QOCS protections, particularly where claims of procedural abuse are central to the application. [40, 41]

[50] … The claimants’ solicitors’ conduct was lax but did not step over into an abuse of the process, let alone as conduct justifying the remedy of striking out. … The letters certainly should have identified the claimant and they were unreasonable in not doing so, but I agree with the judge that this error does not amount to an abuse of process.

Key Findings In The Case

The claimants’ failure to serve the claim form within the prescribed time was held not to constitute an abuse of the court’s process, as the conduct did not demonstrate an intentional or contumelious breach, and the court found no evidence of wholesale disregard for procedural rules. [50]
The claimants were entitled to rely on the Qualified One-Way Cost Shifting (QOCS) regime because the claim included damages for personal injuries as the main and substantial element of the claim, even though it also involved media and privacy causes of action. [21, 57, 59]
The court found that the pre-action correspondence, although anonymised and failing to identify the claimant properly, did not amount to an abuse of process. The errors were considered to be mistakes, not deliberate attempts to obstruct justice or flout applicable rules. [50]

The claimants asserted damages for personal injury (psychiatric injury), supported by an expert report, and the court concluded that this claim was not fictitious or improperly framed for the purpose of invoking QOCS protections. [59]
The claimants’ adherence to pre-action protocols, including the Media and Communications Protocol (when it came into effect), could not be criticised to the extent that it constituted grounds for striking out. The court recognised mistakes but did not find wholesale non-compliance or conduct warranting this sanction. [45, 50]

[14] ... What would be required to justify a strike out in these circumstances was inordinate or inexcusable delay, or intentional or contumelious default, or wholesale disregard for the rules in failing to serve the claim form in time, whereas all that had been identified in this case was, at most, a failure to serve the claim form in time. There was no evidence it was deliberately or wilfully late (judgment [71]). That does not amount to an abuse of process, applying Aktas v Adeptas [2010] EWCA Civ 1170 (at [90]).

Background

The case of Birley v Heritage Independent Living Ltd involved an appeal to the Court of Appeal concerning costs issues related to a claim for damages due to alleged breaches of the General Data Protection Regulations (GDPR) and misuse of private information. The claimants, Nathaniel Birley and Virginer Bell, acting as personal representatives of the estate of Ms Rosa Taylor, brought the action against Heritage Independent Living Ltd. The case primarily focused on whether the cost provisions allowing recovery of a success fee and after-the-event (ATE) insurance premium could apply alongside qualified one-way costs shifting (QOCS) in personal injury claims.

Costs Issues Before the Court

The main costs issue before the court was whether QOCS could apply simultaneously with the recovery of a success fee and ATE insurance premium in a claim that included both personal injury and media-related causes of action. Additionally, there were questions about the court’s power to award costs in the context of late service of the claim form and whether the claimants’ conduct constituted an abuse of process, potentially justifying the disapplication of QOCS.

The Parties’ Positions

The appellant, Heritage Independent Living Ltd, argued that the claimants had “cherry-picked” between different pre-action protocols to gain a favourable position on costs. They contended that the claimants’ conduct, including the use of anonymised pre-action correspondence and failure to notify Heritage of the claim’s issue, constituted an abuse of process. The claimants, on the other hand, maintained that their actions did not amount to an abuse of process and that QOCS should apply as the claim included a personal injury component.

The Court’s Decision

The Court of Appeal held that QOCS could indeed apply alongside the potential recovery of a success fee and ATE insurance premium in cases where both personal injury and media-related claims were involved. The court found that the claimants’ conduct, while flawed, did not constitute an abuse of process sufficient to disapply QOCS. The appeal was dismissed, and the costs of the appeal were awarded to the claimants, as they were deemed the overall winners. The court also addressed procedural issues related to the dissolution of Heritage Independent Living Ltd and the involvement of its insurers in the appeal.

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