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

ABC & ORS V DERBYSHIRE COUNTY COUNCIL & ANOR | KEY FINDINGS AND EXCERPTS

Was this a mixed claim?

The case was a “mixed claim” within CPR r 44.16(2)(b) …

“The parties eventually agreed that this was a “mixed claim” within CPR r 44.16(2)(b)…That was plainly correct because: (i) following Achille, “proceedings” refers to all the claims made by a claimant against a single defendant, when one such claim is a claim for personal injury; (ii) all four Claimants had brought a claim for damages for personal injury against each Defendant; (iii) all four Claimants had also brought claims which were not claims for damages for personal injury against each Defendant, in that they had all sought aggravated damages against each Defendant (and ABC had sought special damages unrelated to personal injury in the form of the heads of claim referred to at [13] above); and (iv) the exception in CPR r 44.16(2)(b), as interpreted in Brown at [31] (see [27] above), therefore applied.” [38]

The court therefore had discretion to grant permission under CPR r 44.16(2) for the defendants to enforce their costs orders against the claimants …

“On that basis the overarching question for me to address is whether it is “just” in the exercise of my discretion to grant permission under CPR r 44.16(2) for the Defendants to enforce their costs orders against the Claimants, and if so, to what extent. Although Mr Ford KC and Mr Basu KC sought to persuade me that the discretion under CPR r 44.16(2) is to be exercised by reference to the general costs discretion under CPR r 44.2, guidance as to the manner in which the specific discretion under CPR r 44.16(2) should be exercised was set out by Coulson LJ in Brown at [57]-[58], as affirmed in Achille at [37].” [39]

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

The proceedings could fairly be described “in the round” as a personal injury case …

“Following Brown at [52], it is necessary for me to determine, first, whether in Coulson LJ’s words, these proceedings “can fairly be described in the round as a personal injury case”. Mr Edwards contended that they can. In my judgment he is correct. I have reached this conclusion for the following reasons… Rather, the negligence, HRA and false imprisonment claims were pursued at trial almost exclusively for the purpose of obtaining personal injury damages… Sixth, both Mr Ford and Mr Basu highlighted aspects of the Claimants’ evidence suggesting that their primary motive for bringing the claims was not to secure damages, but their belief in the need to hold the Defendants to account… However, again, this does not detract from the fact that the Claimants did in fact seek personal injury damages in their HRA claims.” [40-47]

The claimants had evidentially sound personal injury claims …

“Further, the agreed expert evidence that would have been adduced had the trial proceeded to deal with quantum issues was to the effect that all four Claimants had suffered psychiatric/psychological injuries, although the duration and extent of those injuries was in dispute. Accordingly these were evidentially sound personal injury claims and the Claimants cannot, in my judgment, fairly be accused of “tacking on” weak personal injury claims to other causes of action (to quote Brown at [59]) or of simply “dressing up” a non-personal injury claim “in the clothes of a personal injury claim” to avoid the normal consequences of failure in litigation (to quote Siddiqui at [8]).” [48]

The main element of the claim that did not relate to personal injuries was the claim for aggravated damages …

“Seventh, the main element of the claim that did not relate to personal injuries was the claim for aggravated damages advanced by each Claimant. However, although the sums sought under this head were large, these claims generated no need for additional evidence. The factual basis for the claim would, inevitably, have been explored for the purposes of the Claimants’ personal injury claims in any event.” [49]

The £14,000 damages sought unrelated to the personal injury generated only a handful of questions …

“Eighth, to the extent that ABC’s Schedule also sought just under £14,000 in special damages unrelated to personal injury (see [13] above) this was a modest sum in the context of the overall value of the claim. It is akin to the examples of the cost of repairs or alternative vehicle hire in a road traffic accident case given by Coulson LJ in Brown at [56] (see [31] above). This claim generated only a handful of questions for ABC in cross-examination.” [50]

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

“Having found that this can fairly be described in the round as a personal injury case, following Brown at [57], the “starting point” for the exercise of my 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”. I therefore disagree with the Mr Ford and Mr Basu’s submissions to the effect that once the automatic application of QOCS under CPR r 44.14 has been lost, a judge has a wide discretion; and should adopt a starting point that 100% of the costs should be enforced, looking to see if there are particular features that justify a reduction below 100%.” [51]

“As noted above, the only “non-personal injury” claims pursued at trial were the claims for aggravated damages and ABC’s claim for special damages unrelated to personal injury. The “non-personal injury” claims initially pleaded but not pursued at trial were the claims for (i) declarations under the HRA; (ii) an order that the Defendants’ expunge references to the safeguarding investigation from their records; (iii) exemplary damages; (iv) just satisfaction damages under the HRA beyond personal injury damages; and (v) damages under the EA 2010 beyond personal injury damages.” [52]

“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”. While I permitted Mr Basu to cross-examine ABC and DEF about their own conduct, on the basis that the same can be relevant to just satisfaction awards under the HRA, including where such awards relate to personal injury damages (see Alseran at [916]), neither Defendant suggested that any of the Claimants had grossly exaggerated their claims for aggravated damages or other non-personal injury claims.” [53]

“Ms O’Hara’s witness statement was critical of the Claimants for (i) their pursuit of a specific disclosure application dated 7 March 2022 and an application to provide further information under CPR Part 18 dated 19 July 2022; and (ii) their insistence on intermediary reports and a Ground Rules Hearing in respect of the evidence of GHI and JKL. However, my understanding is that the Claimants’ positions on these various interlocutory issues were all approved by the court. On that basis they cannot properly be used as examples of the Claimants’ adverse “conduct” for costs purposes.” [54]

“The following “conduct” factors were also relied on by one or both of the Defendants: (i) the Claimants’ refusal to consider a split trial; (ii) their refusal to agree that Cheryl Hayward could give evidence remotely; (iii) their advancing of the “extraordinary proposition” that the Bolam test did not apply to the negligence claim against D1, on which their position shifted several times (see the liability judgment at [200]-[202]); (iv) the fact that in their witness evidence ABC and DEF made allegations of bad faith by the Defendants’ witnesses which were not put to the witnesses in cross-examination; (v) their lack of engagement with a “drop hands” offer sent by D2 shortly before the trial; and (vi) the fact that ABC’s father was said to have substantial private means, whereas the Defendants are both public bodies who face significant pressures on resources.” [55]

“In my judgment none of these factors constitute “exceptional features” of the litigation that should sound in costs against the Claimants. Moreover, none of them relate exclusively or even directly to the non-personal injury claims: all these issues were applicable to the personal injury claims too (and indeed issues (i) and (iii) were only really applicable to the personal injury claims).” [56]

“Reliance was also placed on the fact that the Claimants pursued their claim under the EA 2010 until very shortly before the trial: it was not withdrawn until 16 January 2023. Moreover, on 7 December 2022 the Claimants had sought to amend their Particulars of Claim to expand this claim to include JKL as well as GHI. I accept Ms O’Hara’s evidence that this gave the Defendants very little time to consider the proposed additional claim and the evidence that might be necessary to meet it. The original and proposed amended claim were then abandoned on 16 January 2023.” [57]

“This fits within a wider pattern of advancing a series of non-personal injury claims (in fact all those referred to at [41] above) and, perhaps, a lack of clarity until trial about which of the non-personal injury claims were actually being pursued. However, again, I am not satisfied that this was “exceptional” for the purposes of Brown at [57].” [58]

“I take a different view in relation to the issues relating to Mr Barratt’s evidence, as set out at [155]-161] of the liability judgment, on which Mr Ford and Mr Basu placed significant reliance.” [59]

“I accept Mr Barratt’s evidence that he was not unduly influenced by the documentation he had been sent, for which the Claimants’ solicitor apologised. However, this issue generated understandable concerns during the trial and contributed directly to the need to order a split trial.” [60]

“I also accept Mr Edwards’ assurance that pre-trial conferences were held with Mr Barratt. However, the manner in which his evidence developed under relatively straightforward cross-examination (with no disrespect whatsoever intended to Mr Ford or Mr Basu) strongly suggested that his evidence had not been sufficiently tested before the decision was taken to rely on it.” [61]

“This issue was, in my judgment, an “exceptional” feature of the case. Mr Barratt’s evidence had been relied on to found the Claimants’ case on liability and thus to support all of the non-personal injury claims referred to at [52] above, which were maintained until relatively close to or throughout the trial. On that basis it is appropriate to take it into account in the exercise of the CPR r 44.16(2)(b) discretion.” [62]

“The non-personal injury claims did lead to the Defendants incurring some additional costs over and above the costs they would have incurred in relation to the personal injury claims, but the level of those costs was, in my judgment, very modest in the context of the claim overall.” [63]

“This issue does not justify enforcement of the Defendants’ costs against the Claimants to anything close to the 85% figure sought by the Defendants.” [64]

“Doing the best I can, in the exercise of my discretion under CPR r 44.16(2)(b), I consider an appropriate level of enforcement to be 5%. In my judgment that figure properly respects the spirit of the QOCS regime and the starting point of the need for a costs neutral result in relation to the personal injury claims, but makes an appropriate allowance for the exceptional nature of the Mr Barratt issues insofar as they impacted on the non-personal injury claims.” [65]

Link to Judgment