CPR 26.9(10)(e) | Wrongful Interference With Goods Against Police Mandates Multi-Track Allocation | Part 36 Acceptance Does Not Oust Fixed Costs

, , ,

Background

The case concerned a claim brought by the Executors of the Estate of Kenneth Collins against the Chief Constable of Thames Valley Police. In July 2015, police officers arrested Mr Collins and, during a search of his property, seized thirteen guns and ammunition [§2]. He was later convicted of related offences in February 2017, and a destruction order was made for some of the items [§3]. Following revocation of his shotgun certificate, requests for the return of the remaining guns to his partner were refused. On 6 November 2018, the police informed Mr Collins that the guns had been destroyed [§4].

Mr Collins instructed Brabners LLP to pursue a claim in negligence and/or wrongful interference with goods, with losses quantified at approximately £228,000. A Letter of Claim was sent on 12 July 2019 [§5]. The Defendant’s response on 28 October 2020 indicated it could identify no defence to liability in principle [§5]. Mr Collins died on 15 April 2022, and the claim was continued by his estate [§6]. Both parties obtained expert valuation evidence.

On 11 January 2023, the Claimant made a Part 36 offer of £50,000 [§7]. On 17 January 2023, the Defendant made a Part 36 offer of £32,500 using Form N242A, which included a term that acceptance within 21 days would render the Defendant liable for the Claimant’s costs in accordance with CPR 36.13 [§8]. The Claimant accepted this offer on 1 February 2023, within the relevant period.

Costs were not agreed. On 31 December 2024, the Claimant issued Part 8 costs-only proceedings [§9]. The Defendant contested the making of an order for assessed costs, leading to the hearing before Costs Judge Whalan.

Costs Issues Before the Court

The sole issue for determination was whether the Claimant was entitled to an order for costs to be assessed on the standard basis, or whether their recovery was limited to fixed recoverable costs under the extended regime introduced by the Civil Procedure (Amendment No. 2) Rules 2023. This turned on three alternative questions [§10]:

    1. Whether FRCs were excluded because the substantive claim fell within the scope of CPR 26.9(10)(e), requiring mandatory allocation to the multi-track.
    2. Whether FRCs did not apply because the claim was a non-personal injury claim that settled without proceedings being issued, per the transitional provisions of the 2023 Rules.
    3. Whether FRCs were ousted by the express terms of the Part 36 settlement agreed in February 2023.

The Parties’ Positions

The Claimant’s Position: Counsel, Mr Waszak, submitted that FRCs did not apply for three reasons. First, the claim fell within CPR 26.9(10)(e)(i) as a “claim against the police which includes a claim for… an intentional or reckless tort” [§13]. The Letter of Claim referenced “wrongful interference with goods”, which encompassed the intentional torts of conversion and trespass to chattels [§14-16]. The destruction of the guns was, by nature, a deliberate act [§17]. This would have mandated multi-track allocation, taking the claim outside the FRC regimes.

Second, on the transitional provisions, Mr Waszak argued that FRCs only applied to non-personal injury claims where substantive “proceedings are issued” on or after 1 October 2023 [§21]. The phrase “proceedings” referred to the substantive claim, not subsequent Part 8 costs proceedings. As the substantive claim settled pre-issue, it was not caught. He cited a Q&A supplement to the White Book in support [§24] and invoked the presumption against retrospective legislation, arguing it would be “manifestly unjust” and “absurd” to apply FRCs retrospectively to a claim conducted under a different costs regime [§26].

Third, he argued that the Part 36 agreement itself expressly ousted FRCs. The Defendant’s offer stated costs would be payable “in accordance with rule 36.13”, which provides for assessment on the standard basis. This constituted an express agreement that costs would not be fixed, per CPR 45.1(3) [§35].

The Defendant’s Position: Counsel, Mr Hogan, submitted that FRCs applied. On the first issue, he contended the claim was, in legal and factual reality, solely in negligence. The Letter of Claim’s language was “redolent of negligence” and contained no elaboration on intentional torts [§18]. The Defendant’s admission of liability was based on negligence.

On the transitional provisions, Mr Hogan argued that the word “claim” in the rules included Part 8 costs-only proceedings. A “claim” remained in being until all elements, including costs, were concluded [§28]. Therefore, issuing costs proceedings after 1 October 2023 triggered the FRC regime for all costs incurred. He cited the county court decisions in Asmat Bi v Tesco Underwriting Ltd [§32] and Bek v Simsek [§33] which reached this conclusion. He also noted that procedural changes are not subject to the rule against retrospectivity [§30].

On the third issue, he submitted that acceptance of a Part 36 offer did not amount to “contracting out”. It merely conferred an entitlement to costs determined by the rules as a whole, which included the potential for FRCs [§36]. Part 36 is a procedural code, not a contractual agreement to oust other rules.

The Court’s Decision

Costs Judge Whalan held that the Claimant was entitled to an order for costs to be assessed on the standard basis.

On Issue 1 (CPR 26.9(10)(e)): The court found that the substantive claim did fall within CPR 26.9(10)(e)(i). The provision required only that the claim “included” a claim for an intentional tort — the provisions were “not exclusive but inclusive” [§19]. The reference to “wrongful interference with goods” in the Letter of Claim “sensibly and inevitably” suggested an alternative claim in conversion and/or trespass to chattels. The destruction of the firearms was “self-evidently the consequence of an intentional act” on the part of the Defendant [§19]. Therefore, the claim would have been mandatorily allocated to the multi-track, placing it outside the scope of FRCs under CPR 45. This finding was determinative in the Claimant’s favour.

On Issue 2 (Transitional Provisions): The court concluded that, had Issue 1 been decided differently, FRCs would have applied by virtue of the transitional provisions [§34]. It rejected the Claimant’s narrow interpretation. The court held that “claim” in the 2023 Rules included Part 8 costs-only proceedings issued to obtain a costs order. There was a single, continuing claim until all elements were concluded. No material distinction should be drawn between the substantive claim and costs-only proceedings. The changes were procedural and not subject to the rule against retrospectivity. The court found the scheme created a “bright line” demarcation and noted the Claimant had eight months to issue costs proceedings before the 1 October 2023 commencement date. It found the county court decisions of Asmat Bi and Bek “reassuring”, though not binding. The court expressly declined to place any reliance on the CPRC Minutes of 3 November 2023 [§34].

On Issue 3 (Contracting Out via Part 36): The court rejected the argument that the Part 36 agreement ousted FRCs [§37]. Offer and acceptance under Part 36 invoked a procedural, not a contractual, process. The entitlement to costs under CPR 36.13 was expressly subject to the proviso “Except where the recoverable costs are fixed by these Rules”. Therefore, it could not be construed as an agreement that costs would not be fixed if the Rules otherwise provided for FRCs.

Implications for Costs Practice

This decision has two significant implications for practitioners.

First, it establishes that claims against the police for wrongful interference with goods — even where framed primarily in negligence — will include an element of intentional tort (conversion or trespass to chattels) sufficient to engage CPR 26.9(10)(e)(i). Such claims must be allocated to the multi-track and are therefore excluded from the FRC regime regardless of value. Practitioners handling claims against the police should carefully consider whether any intentional tort element is present, as this provides an escape route from fixed costs.

Second, the court’s analysis of the transitional provisions is strictly obiter — the claim having already been excluded from FRCs on the intentional tort ground — but it represents the first SCCO-level endorsement of the approach taken by the county courts in Asmat Bi and Bek v Simsek, and is therefore of considerable practical significance. Notably, the court reached this conclusion on the proper construction of section 2(1) of the Civil Procedure (Amendment No. 2) Rules 2023 without placing any reliance on the CPRC Minutes of 3 November 2023, which practitioners had previously been citing as the primary authority for the position that Part 8 costs-only proceedings constitute “proceedings” for the purposes of those transitional provisions. The fact that the SCCO arrived at the same result through independent statutory analysis makes the reasoning considerably more robust. For any legacy non-PI claims that settled pre-issue before October 2023 but where Part 8 costs-only proceedings were issued after that date, this confirms that FRCs will apply. Practitioners with such cases still in the pipeline should take note.

Third, the court’s finding that acceptance of a Part 36 offer does not constitute contracting out of FRCs under CPR 45.1(3) is also technically obiter, but has implications well beyond police claims. The judgment confirms that Part 36 is a self-contained procedural code, and that the entitlement to costs under CPR 36.13 is expressly subject to the proviso “Except where the recoverable costs are fixed by these Rules.” Practitioners relying on Part 36 settlements to escape FRCs will need to seek express contractual language — a standard Part 36 acceptance, on its own, will not suffice.

YouTube player

The Extended Fixed Recoverable Costs Regime | 18 Months On

A Practical Guide To The New Intermediate Track Costs Rules

Part 36 Acceptance And Conventional (Assessed) vs Fixed Recoverable Costs

Parties Can Contract Out Of Fixed Costs | CA Decision

Allocation to Multi-Track Automatically Disapplies Fixed Costs Regime

Late Acceptance Of A Claimant’s Part 36 Offer In The Fixed Costs Regime

Consent Orders Settling Quantum Constitute ‘Judgment’ For CPR 36.17 Purposes

, , ,

The High Court’s decision in Thomas v Secretary of State for the Home Department [2025] EWHC 3274 (KB) confirms that consent orders settling damages claims trigger the costs consequences under CPR 36.17.

Background

The claimant, Michael Anthony Thomas, a Jamaican national, brought proceedings against the Secretary of State for the Home Department for unlawful detention during early 2020. Following a contested hearing, judgment on liability was given on 22 November 2024, finding that the claimant had indeed been unlawfully detained for a period [§1]. The issue of quantum was adjourned for further submissions but was subsequently agreed between the parties [§2].

On 23 July 2025, a consent order was agreed [§3]. It recorded the defendant’s agreement to pay the claimant £16,000 in full and final settlement of his claim for damages, with the issue of legal costs remaining unresolved. The order provided a timetable for written submissions on costs, to be determined by the court without a hearing. Prior to the liability trial, the claimant had made four Part 36 offers, all for sums lower than the eventual £16,000 settlement figure [§5].

Costs Issues Before the Court

The primary issue for determination was whether the costs consequences under CPR 36.17 were triggered by the settlement [§6]. The rule provides enhanced costs consequences for a claimant who obtains a judgment at least as advantageous as their own Part 36 offer. The settlement sum of £16,000 exceeded all the claimant’s previous Part 36 offers. The dispute centred on whether a settlement encapsulated in a consent order constituted a “judgment” for the purposes of engaging CPR 36.17, or whether the rule required a formal judgment following a contested trial.

The Parties’ Positions

The Defendant’s Position: Counsel, Mr Gwion Lewis KC, argued that CPR 36.17 was not engaged [§7]. He relied on the rule’s title, “Costs consequences following judgment”, and its wording which refers to consequences applying “upon judgment being entered”. He submitted that the term “judgment” connoted an independent judicial decision on damages following a contested hearing [§8]. A settlement, even one embodied in a court order approved by a judge, was not a “judgment” and therefore the automatic costs consequences of Part 36 did not apply.

The Claimant’s Position: Counsel, Mr Gordon Lee, contended that the compromise contained within a sealed court order was equivalent to a judgment being entered [§9]. He argued this was merely a semantic difference. In support, he referred the court to the Court of Appeal authority of Vanden Recycling Ltd v Kras Recycling BV [2017] EWCA Civ 354 [§10], which considered the effect of a consent order in the context of claims against concurrent tortfeasors.

The Court’s Decision

The court found in favour of the claimant, holding that the true effect of the consent order of 23 July 2025 was to enter judgment in favour of the claimant in the sum of £16,000 [§15]. The court applied the reasoning from Vanden Recycling, where the Court of Appeal had focused on the substance and effect of a consent order rather than its precise wording [§12]. Hamblen LJ had stated that if an order requires a defendant to pay a specified sum in respect of the claimant’s claims and is a final order, then “in substance and in effect” it is the same as an order made following a judgment.

The court concluded that the mere fact that the word “judgment” did not appear in the consent order was of no consequence when considering the order’s effect [§13]. Indeed, an order made by the court following a trial could have been drafted in precisely the same terms. The consent order was enforceable in precisely the same way as if the court had awarded damages to the claimant at the end of the trial [§15]. This interpretation was supported by commentary in the White Book to CPR 40, which noted that the Civil Procedure Rules provide no clear basis for distinguishing between the terms “judgment” and “order” [§14].

The court recorded that the defendant had not argued it would be unjust in all the circumstances for the Part 36 costs consequences to apply, and the court observed there would be no reasonable basis for such a finding [§16].

As the settlement sum was more advantageous than the claimant’s Part 36 offers, the costs consequences under CPR 36.17 were engaged. The court accepted that the usual costs consequences should run from 8 November 2021, being 21 days after the first Part 36 offer of £15,000 [§17]. The court stated that the resulting order would follow the claimant’s written proposal (paragraph 10 of Mr Lee’s submissions), subject to two modifications: the interest rate on costs was set at 7%, and the claimant was required to bear the costs of the application dated 9 May 2025 to adduce a witness statement [§18].

YouTube player

Part 36 Consequences CPR 36.17 | Learning Curve v Lewis

CPR 36.17 And The Just Rewards Of A Good Part 36 Offer

CPR 36.17(4) | Just Consequences | Court Of Appeal Decision

CPR 36.17 | Part 36 Offer To Accept £1 Was A Genuine Attempt To Settle

CPR 36.17(4) And The Sometimes ‘Unjust’ Consequences Of Part 36

A costs-inclusive “Part 36 Offer” is NOT a Part 36 Offer

Costs Capping Order | Court Sets Different Caps Despite Defendant’s Push For Parity In Facial Recognition Challenge

, , ,

The High Court’s decision in Thompson & Anor v Commissioner of Police of the Metropolis [2025] EWHC 2355 (Admin) demonstrates that costs capping orders under sections 88-89 of the Criminal Justice and Courts Act 2015 need not be set at identical levels.

Background

The claim for judicial review was issued on 24 May 2024 by Shaun Thompson and Silkie Carlo against the Commissioner of Police of the Metropolis. The claim initially challenged the lawfulness of the Defendant’s policy governing the deployment of Live Facial Recognition (LFR) technology. The proceedings were stayed by order of Sheldon J pending a review of that policy by the Defendant. Following the review, the original policy was withdrawn and replaced with a new policy dated 11 September 2024. The claim was subsequently amended to challenge the new policy, and the grounds relating to the old policy were withdrawn by consent.

On 30 April 2025, Mrs Justice Farbey granted permission for the Claimants to proceed on two amended grounds. Ground 1 alleged that the ongoing use of LFR breached the Claimants’ right to respect for private life under Article 8 of the European Convention on Human Rights because it was not “in accordance with the law”. Ground 2 alleged breaches of the rights to freedom of expression and assembly under Articles 10 and 11, on the basis that the interference was not “prescribed by law”. The Defendant did not resist the grant of permission, acknowledging the public importance of the issues.

At the permission stage, the court was also required to determine three interim applications made by the Claimants: an application to rely on expert evidence from Professor Martin Utley; an application for a costs capping order; and an application to rely on a third witness statement from Ms Carlo. This judgment deals solely with the determination of those applications.

Costs Issues Before the Court

The primary costs issue for determination was the Claimants’ application for a costs capping order under sections 88 and 89 of the Criminal Justice and Courts Act 2015. The parties agreed that reciprocal costs caps should be imposed. The dispute centred on the appropriate level of those caps. The Claimants sought an order capping their own liability at £40,900 and the Defendant’s liability at £107,700. The Defendant contended that both caps should be set at an identical figure of £107,700. The court was required to resolve this dispute by applying the statutory criteria, with particular focus on the financial resources of the parties.

The Parties’ Positions

The Claimants’ position was that the caps should not be identical. They argued that the statutory requirement was for reciprocal, not mirror, limits. They emphasised that their financial resources were limited. Ms Carlo is the Director of Big Brother Watch (BBW), a non-profit organisation which had agreed to indemnify the Claimants against an adverse costs award. Evidence was provided that BBW had raised £24,409 from crowdfunding (reducing to £23,299 after fees) and had secured an offer of £15,000 from Law for Change, totalling £40,900. It was argued that this was the maximum sum that could be raised through specific fundraising for the case. Further evidence from Lord Strasburger, Chair of BBW’s Board, stated that the organisation’s unrestricted funds of £235,221 were needed for core operational costs and that its reserves of £262,699 were below the recommended minimum. He stated that diverting funds to meet a costs award would be “completely irresponsible” and would jeopardise the organisation’s existence. The Claimants also argued that their legal team was working at significantly discounted rates and that a higher, identical cap would act as a disincentive to lawyers taking on public interest cases, thereby inhibiting access to justice.

The Defendant’s position was that the caps should be identical and set at £107,700. They submitted that BBW was effectively driving the litigation and should therefore be expected to deploy some of its own funds to pay for it. It was argued that a cap of £40,900, funded entirely by external donations, would allow the Claimants to litigate without meaningful financial constraint. The Defendant contended that the Claimants’ resort to expert evidence demonstrated a lack of concern for costs that would necessitate a costly response. The Defendant also relied on the principle that the public purse is not a “bottomless pit”, citing Good Law Project v Secretary of State for Health and Social Care, and argued that BBW was not impecunious, holding over £500,000 in combined unrestricted and reserve funds.

The Court’s Decision

The court allowed the application for a costs capping order but set the caps at different levels from those proposed by either party. On the Claimants’ costs liability, the court imposed a cap of £70,000. The court found that whilst it was appropriate to consider BBW’s financial resources, the organisation could reasonably be expected to contribute more than the £40,900 raised through specific fundraising. The court noted that BBW held £235,221 in unrestricted funds and £262,699 in reserves. Whilst acknowledging the importance of good governance and maintaining reserves, the court concluded that it was not unreasonable to expect BBW to make a strategic choice to prioritise the High Court litigation and take the risk of a “modest dip” in its reserves. The court found that a total cap of £70,000 struck a fair and just balance between the competing interests of access to justice and the call on public funds. The court was not satisfied that it would be reasonable for the Claimants to withdraw the claim if this cap were imposed.

On the Defendant’s costs liability, the court rejected the argument for identical caps and imposed a cap of £100,000. The court agreed with the Claimants that parity was neither necessary nor fair. The higher cap for the Defendant was intended to reflect the efficient and focused progress of the litigation whilst acknowledging the discounted rates at which the Claimants’ legal team was working. The court concluded that this moderate difference served the public interest.

The court also allowed the other two applications. Permission was granted for the Claimants to rely on the expert report of Professor Utley, to be considered de bene esse at the substantive hearing. Permission was also granted for the Claimants to rely on Ms Carlo’s Third Witness Statement, also to be considered de bene esse.

Implications for Costs Practice

This decision clarifies several important points for practitioners handling costs capping applications in judicial review cases.

The court will look beyond specific fundraising to assess the true financial resources available to support litigation. Campaign organisations cannot simply point to limited specific fundraising while holding substantial unrestricted funds. Good governance requirements for maintaining reserves will be recognised but will not automatically insulate those reserves from contributing to litigation costs.

The statutory requirement for “reciprocal” caps under section 89(2) does not mean identical caps. Courts will consider the relative financial positions of the parties and other relevant factors, including whether legal teams are working at reduced rates in the public interest.

Strategic arguments about deterring lawyers from public interest work carry some weight but will not override the court’s assessment of what each party can reasonably afford based on their actual financial resources.

For practitioners, the case reinforces the importance of providing comprehensive evidence about financial resources when seeking costs caps, while recognising that courts will expect applicants with significant organisational backing to contribute meaningfully to the costs risks they create through High Court litigation.

Reciprocal Costs Capping Orders In Public Interest Judicial Review Claims

Costs Capping Orders And The Court’s Discretion As To Costs In Public Interest Judicial Review Proceedings

Court of Appeal decision in Elan-Cane v SSHD on whether courts can apply percentage reductions to agreed costs caps in public interest cases

Protective Costs Orders | The Principles

Analysis of Corner House principles and the distinction between PCOs and costs capping orders under the 2015 Act

Costs In Withdrawn Judicial Review Claims

Court of Appeal guidance on costs orders when judicial review claims are compromised or withdrawn before hearing

Costs management orders and costs capping orders: Costs capping orders

Practical guidance on CPR 3.19-3.21 and the general costs capping regime outside judicial review

QOCS Protection Limited To 50% Of Costs In Mixed Personal Injury Claims

, , ,

In Searson v Chief Constable of Nottingham Constabulary [2025] EWHC 1982 (KB), Wall J’s costs decision following a partially successful appeal provides instructive guidance on how courts approach QOCS protection in mixed claims. The case demonstrates that even claimants bringing identical causes of action on the same claim form can face dramatically different costs consequences depending on whether they include a personal injury element.

The Costs Orders | Contrasting Protection Levels

Following HHJ Owen’s dismissal of all claims at trial, the costs orders strikingly differed between the two claimants:

  • Mr Searson: No QOCS protection – fully liable for the defendant’s costs
  • Mrs Searson: 50% QOCS protection under CPR 44.16 – enforcement limited to half the assessed costs

These differentiated orders survived appeal, confirming important principles about individualised assessment of QOCS protection.

Background | The Claims and Costs Context

The Searsons brought claims for false imprisonment, trespass to person and trespass to goods following their arrest and detention in March 2019. Crucially for costs purposes, Mrs Searson alone included a personal injury claim, alleging physical and psychological effects on her pre-existing health conditions.

The appeal succeeded only on a technical point regarding Mrs Searson’s detention review, establishing unlawful detention for 2 hours 14 minutes but resulting in nominal damages of £1.

The QOCS Analysis | Individual Assessment Required

Mr Searson | No Personal Injury Means No Protection

Wall J applied the principle from BB v Khayyat [2025] EWHC 443 (KB): QOCS protection is determined by reference to each claimant’s specific claims. Despite sharing a claim form with his wife’s personal injury claim, Mr Searson received no protection because he made no personal injury claim himself.

The court rejected arguments that claims could be “so bound up” as to extend QOCS protection by association – a position “sensibly abandoned” at the hearing.

Mrs Searson | The Mixed Claim Evaluation

For Mrs Searson, the court:

  • Correctly identified her claim as mixed under CPR 44.16
  • Conducted the required evaluation of how proceedings were actually conducted
  • Determined 50% protection appropriately reflected that “the majority of the trial was taken up with the determination of the lawfulness of her detention and not an assessment of her pleaded injuries”

Wall J emphasised the discretionary nature of costs orders, stating he would only interfere if the decision was one the judge “could not properly have come to.”

Key Principles for Costs Practice

Individual Assessment on Joint Claims

The decision confirms that:

  • Each claimant must be assessed individually for QOCS protection
  • Using the same claim form provides no costs protection advantages
  • “Protection by association” is not available even between spouses
  • Each claimant’s costs liability is determined separately

Mixed Claims | The Practical Evaluation

When assessing mixed claims under CPR 44.16, courts consider:

  • How trial time was actually allocated, not just the pleadings
  • The relative focus on personal injury versus other claims
  • What damages would have been recoverable without the personal injury element
  • The practical conduct of proceedings

The Discretionary Threshold

Wall J’s approach reinforces that:

  • Partial QOCS protection is a realistic outcome in mixed claims
  • Courts have wide discretion in determining protection levels
  • Appeals face a high threshold – the decision must be one the judge “could not properly have come to”

Practical Implications

This decision provides valuable guidance for costs practitioners handling multi-claimant cases:

Strategic considerations: When advising multiple claimants, practitioners must assess each client’s position individually. The inclusion of personal injury claims by one claimant provides no costs protection for others, even family members on the same claim form.

Mixed claims evaluation: The reality of trial conduct matters more than pleaded claims. Where substantial trial time addresses non-personal injury issues, expect reduced QOCS protection even where personal injury is pleaded.

Client advice: Practitioners must ensure clients understand that partial success may still result in significant costs exposure. Here, proving unlawful detention attracted nominal damages of £1 while exposing Mrs Searson to 50% of the defendant’s costs.

Procedural efficiency: Using a single claim form for multiple claimants offers no costs protection advantages and may complicate costs assessments where different protection levels apply.

The Broader Costs Context

This case reinforces developing jurisprudence on mixed claims and QOCS protection. It confirms courts will take a granular approach, examining:

  • The actual conduct of proceedings
  • The substantive focus of trial time
  • The true nature of claims pursued

The decision sits comfortably alongside BB v Khayyat in confirming that QOCS protection cannot be shared between claimants based on procedural convenience or personal relationships.

Conclusion

Searson provides clear guidance on individualised QOCS assessment in multi-claimant cases. The contrasting costs orders – full exposure for one claimant, 50% protection for another – demonstrate the importance of careful claim formulation and client advice about costs risks.

For costs practitioners, the case reinforces that strategic decisions about including non-personal injury claims alongside personal injury claims require careful cost-benefit analysis. The nominal damages award despite proving unlawful detention serves as a reminder that procedural victories don’t necessarily translate into costs protection where QOCS is limited or unavailable.

The decision confirms that courts will maintain a principled, individualised approach to QOCS protection, looking beyond claim forms to the substance of what each claimant actually pursues at trial.

CPR 36.17 | Claimant Beats Own Part 36 Offer Against “Intransigent” Police

, , , ,

“…it was plain to me that the Claimant has suffered profound and enduring distress due to the Defendant’s officers’ failings. The Defendant’s intransigent conduct of these proceedings, contrary to the obligation on all parties to engage meaningfully with settlement possibilities, has compounded the failures that underpinned the Claimant’s claims. I have no difficulty in accepting that the Defendant’s conduct of the litigation has prolonged and exacerbated the Claimant’s distress. That is a relevant factor when the court is considering the use of compensatory powers in relation to interest.”

Read more

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

, , , ,

This judgment determined the costs issues arising after Mr Afriyie’s claims against the police for assault, battery and misfeasance were dismissed at trial. The court had rejected the Defendant’s argument that the claims should have been struck out for Mr Afriyie’s alleged fundamental dishonesty.

The main issue was whether the court should grant permission to the Defendant under CPR 44.16(2)(b) to enforce the costs order against Mr Afriyie, given this was a ‘mixed claim’ with QOCS protection covering the personal injury element. The judge concluded the claim was essentially a personal injury case ‘in the round’. The starting point was therefore maintaining QOCS protection for a ‘cost neutral’ result unless there were exceptional features of the non-personal injury claims.

Analysing each matter cited by the Defendant, the judge found none constituted an exceptional feature of the non-personal injury parts of the claim specifically. Most related to the personal injury claims too. As no exceptional features displacing QOCS protection were established, permission to enforce costs was refused.

In summary, in this ‘mixed claim’ the unsuccessful claimant retained QOCS protection against paying the defendant’s costs, as the proceedings were fairly characterized overall as a personal injury case and there were no exceptional features identified relating solely to the non-personal injury parts of the claim.

Read more

QOCS In A Mixed HRA, PI Claim | Claimants Ordered To Pay 5% Costs

, , , , ,

The court concluded that the proceedings could fairly be described “in the round” as a personal injury case, and there were no “exceptional features” of the non-personal injury claims that would justify a departure from the starting point that a ‘cost neutral’ result would be achieved. The court’s decision was guided by the principle set out in Brown v Commission of the Police of the Metropolis [2020] 1 WLR 1257 at [57], which states that the 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”.

Read more

Mixed Claims And CPR 44.16(2)(b) | Exceptions To Qualified One Way Costs Shifting (QOCS)

, , , ,

The Court of Appeal has considered the correct approach to QOCS in “mixed” cases involving personal injury and non personal injury claims. Affirming the approaches taken in Jeffreys v Commissioner of the Metropolis [2017] EWHC 1505 (QB) and Siddiqui v The Chancellor, Masters and Scholars of the University of Oxford [2018] EWHC 536 (QB) and upholding the decision of Mrs Justice Whipple DBE in The Commissioner of Police of the Metropolis v Brown [2018] EWHC 2046 (Admin) Lord Justice Coulson rejected arguments that in order for the exception to QOCS at CPR 44.16(2)(b) to apply the personal injury claim and the non-personal injury claim must be “divisible”.

Read more

High Court upholds a Claimant’s Part 36 Offer for nil damages in an action against the police

, , ,

Allowing an appeal from a decision of HHJ Baucher in the Central London County Court Mrs Justice McGowan found than an offer to accept “nil pounds with an admission of liability plus reasonable costs, to be assessed if not agreed” made by a claimant in the course of an action against the police for false imprisonment and assault was a “significant concession” and therefore a genuine Part 36 offer.

Read more

Recoverability Of Inquest Costs And Proportionality

, , , , ,

This was the first appeal in which the recoverability of inquest costs in civil claims has fallen to be considered since introduction of the Jackson reforms. It followed an assessment of costs by Deputy Master Keens in the SCCO when he allowed the sum of £88,356.22 as a against an original claim of £122,000 excl VAT. The claim was for damages for breach of Article 2 of the European Convention on Human Rights, negligence and misfeasance in public office following the death of Ms Jones who became ill at a police station.

Read more