Discretion Applied In Mixed QOCS Claim

WOKINGHAM BOROUGH COUNCIL V ARSHAD (QOCS IN MIXED CLAIMS) | FULL SUMMARY AND DECISION

This was an appeal by Wokingham Borough Council (“the Council”) against the judgment of HHJ Melissa Clarke, given on 15 October 2021, in Oxford County Court in favour of the Claimant, Mr Arshad.

Relevant Background Facts

• Mr Arshad was a taxi driver and had held a hackney carriage vehicle licence (“HCVL”) from the Council since 2006. In late 2016 he needed a new vehicle because his former licensed hackney carriage vehicle was too old to be licensable.
• The Council requires all such vehicles to comply with its licensing policy. The policy covers various matters, one of which is accessibility of vehicles to wheelchair users. For a licence to be issued, the vehicle must be able to accommodate a fully grown adult passenger whilst seated in their wheelchair i.e. there must be adequate headroom, without seats having to be removed. There must be easy access into and egress out of the vehicle for all persons, in particular the elderly and disabled, with provision of additional handholds or grab rails and a portable step if necessary.
• Mr Arshad provisionally decided to purchase a second-hand Ford Galaxy. In December 2016 he contacted the Council’s licensing team, told them the make and model of the new car and asked if it would be approved as wheelchair accessible.
• A technical officer, Mr Joplin, responded by email, saying: “... provided the vehicle has correct documentation a ford galaxy would be an appropriate vehicle and I believe we have other ford galaxy’s on the fleet.”
• Mr Arshad responded, thanking Mr Joplin and stating that the vehicle he intended to purchase was not a “floor down/ cut down vehicle“, but just an “original seven seater“. He did not receive a response.
• Mr Arshad bought the car and installed vehicle ramps and fixing points for a wheelchair safety belt. He submitted his HCVL application which included an Individual Vehicle Approval certificate relating to the adaptations. That certificate indicates conformity with certain EU norms but those do not include passenger headroom. The Council issued Mr Arshad with a new HCVL on 16 February 2017.
• The Council became aware almost immediately that the car might not comply with the policy, and Mr Arshad was asked to bring it in for inspection.
• At an inspection on 27 February 2017 it transpired that there was inadequate headroom for a wheelchair user. Mr Arshad was informed that his HCVL would be suspended as the vehicle was not fit for purpose. He was sent a suspension letter on 2 March 2017 which informed him of a right of appeal to a Council sub-committee.
• Returning from a visit to Pakistan, Mr Arshad converted his HCVL to a Private Hire Vehicle Licence on 15 June 2017 and began working as a private hire driver through a company called Prestige Cars. He also made a complaint to the Council, that he had been given wrong advice by them, that the policy was ambiguous and unclear and that other licensed vehicles were not compliant.
• The appeal panel’s decision, issued on 20 September 2017, upheld the decision that the vehicle was not fit for purpose and the suspension of his HCVL. It recommended that the Council carry out checks on all existing HCVL licensed vehicles. The appeal panel decision notice informed Mr Arshad that he had a right of further appeal to the Magistrates’ Court, but he did not exercise that right.
• Meanwhile, the Council identified other potentially problematic vehicles and sought to inspect them. Nine vehicles were identified as non-compliant and their drivers were issued with suspension letters. Six of them appealed to the appeal panel and were permitted to continue to operate under their HCVLs pending the outcome of their appeals.
• The Council rejected Mr Arshad’s complaint on 18 December 2017.
• Following a committee meeting on 21 March 2018, the Council set about drafting a revised policy which would make clear the size of wheelchair that vehicles must accommodate and the necessary dimensions of the interior of vehicles. It also decided not to issue any more suspensions.
• The Board which heard the other six appeals identified shortcomings and a lack of clarity in the policy and decided that although the vehicles were non-compliant, drivers could retain their licences “until a change in legislation or policy”.
• Mr Arshad complained to the Local Government Ombudsman, which found that the Council was at fault because it had given him wrong advice. It rejected a complaint of discrimination on grounds of religion. It recommended a fresh appeal hearing and the payment of £500 compensation.
• The Council accepted the recommendations. The fresh appeal resulted in the issue of a new licence to Mr Arshad on 28 August 2018.
• The judge found that Mr Arshad had since given up his work as a taxi driver.

Underlying Claim

According to the expert report of a psychiatrist, Dr Balu, Mr Arshad’s loss of his licence and his consequential loss of livelihood and status precipitated a Depressive Disorder involving mild to moderate depression without psychotic symptoms.

Mr Arshad brought a claim in the County Court alleging that he had been treated unlawfully in various ways.

The causes of action were identified as follows:

• • Discrimination on the grounds of race or religion;
  • Negligence (in the provision of advice that the Ford Galaxy would be an appropriate vehicle);
  • Breach of duty (in the carrying out by the Council of their statutory duties relating to hackney carriage licensing).

The trial took place on 16 and 17 September 2021.

Only the negligence claim succeeded. Moreover, only one significant head of claim succeeded, namely the claim for general damages for personal injury consisting of psychiatric illness. Claims for consequential financial loss failed because the losses and/or causation of them were not proved. The claim for aggravated and exemplary damages was not made out on the facts.

The judge assessed damages for pain, suffering and loss of amenity (“PSLA”) in the sum of £42,500 and also awarded £290 for prescription charges and sundry litigation expenses.

Finally the judge ordered the Council to pay costs of £6,270.60 to Mr Arshad. She did not order him to pay any of the Council’s costs despite the failure of his other claims.

The Appeal

The Council successfully appealed the judgment on various grounds and Mr Arshad’s claim was dismissed. As the successful party the Defendant was awarded its costs of the appeal and below. However, the Court had to determine whether QOCS protection applied.

THE HONOURABLE MR JUSTICE BOURNE:

Conclusions

109. The Council’s appeal is allowed.

110. When this judgment was circulated in draft, I invited written submissions on a consequential order. Mr Arshad and Mr Green duly responded. Mr Green provided a draft order for which I am grateful.

111. Mr Arshad also made further written submissions inviting me to change some of the conclusions set out above. Those submissions repeated matters which he had raised earlier. They did not persuade me that I have made any error and I did not find it necessary to invite a further response from Mr Green.

112. Any application for permission to appeal would have to be made to the Court of Appeal under CPR 52.7(1). It is clear that Mr Arshad’s claim must be dismissed and the judge’s award of damages set aside. An interim payment of £10,000 by the Defendant must be repaid.

113. It is equally clear that the Defendant as the successful party should have an order for its reasonable costs here and below.

114. However, the CPR provisions about “QOCS” apply to this claim because it included a claim for damages for personal injuries. I have already referred to CPR 44.14 (1) which provides:

“(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.”

115. So in this case where there is no award to the Claimant, the Defendant’s costs order cannot be enforced unless an exception applies. As I have said, an exception applies in this case by virtue of CPR 44.16:

“(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 –

(a) the proceedings include a claim which is made for the financial benefit of a person other than the claimant or a dependant within the meaning of section 1(3) of the Fatal Accidents Act 1976 (other than a claim in respect of the gratuitous provision of care, earnings paid by an employer or medical expenses); or

(b) a claim is made for the benefit of the claimant other than a claim to which this Section applies.”

116. The proceedings included the claims for financial loss arising from the various causes of action to which I have referred above, and these non personal injury claims were not “a claim to which this Section applies”. This is therefore not a case in which the Defendant’s costs order  is automatically not enforceable. Instead, enforceability is a matter for the Court’s discretion.

117. Neither party has suggested that I should remit that question to the trial judge and in my judgment, it is in the parties’ interests and in the interests of justice for me to determine it.

118. The Court of Appeal gave guidance on the exercise of the discretion in Brown v Commissioner of Police of the Metropolis and another (EHRC intervening) [2019] EWCA Civ 1724, [2020] 1 WLR 1257. There, Coulson LJ referred to “mixed” proceedings, i.e. those with claims in additional to a personal injury claim, and said:

“57.  But in such proceedings, the fact that there is a claim for damages in respect of personal injury, and a claim for damage to property, does not mean that the QOCS regime suddenly becomes irrelevant. On the contrary, I consider that, when dealing with costs at the conclusion of such a case, the fact that QOCS protection would have been available for the personal injury claim will be the starting point, and possibly the finishing point too, of any exercise of the judge’s discretion on costs. If (unlike the present case) the proceedings can fairly be described in the round as a personal injury case then, unless there are exceptional features of the non-personal injury claims (such as gross exaggeration of the alternative car hire claim, or something similar), I would expect the judge deciding costs to endeavour to achieve a “cost neutral” result through the exercise of discretion. In this way, whilst it will obviously be a matter for the judge on the facts of the individual case, I consider it likely that, in most mixed claims of the type that I have described, QOCS protection will—in one way or another—continue to apply …

58.  It is however important that flexibility is preserved. It would be wrong in principle to conclude that all mixed claims require discretion to be exercised in favour of the claimant, because that would lead to abuse, and the regular “tacking on” of a claim for personal injury damages (regardless of the strength or weakness of the claim itself) in all sorts of other kinds of litigation, just to hide behind the QOCS protection (as Foskett J warned in Siddiqui [2018] 4 WLR 62 ).”

119. In Brown, as in this case, there were genuinely mixed claims so that the proceedings could not just be characterised as a personal injury claim with some consequential economic loss. There, as here, the personal injury claim failed. Other claims succeeded but fell short of a Part 36 offer made by the defendant. Coulson LJ ruled that the claimant should not be able to avoid the usual costs consequences of that, merely because she had an unsuccessful personal injury claim.

120. However, in this case the arguments in favour of a costs-neutral outcome do not consist only of the fact that Mr Arshad had an unsuccessful personal injury claim. He was the victim of negligence, although suffering loss of a kind which I have ruled was not reasonably foreseeable. The situation arose in part because of the defective nature of the Council’s policy. He was then also the victim of treatment which, for no apparent good reason, was different from that of other drivers in an analogous position. Meanwhile the fact that he had an unsuccessful personal injury claim, though not entitling him to automatic protection, still provides some protection under the rules by subjecting enforcement to the discretion under CPR 44.16. It does seem to me that the personal injury element was a substantial part of the claim. That claim failed not because it lacked factual merit, but because of the legal issues around claims for psychiatric harm which are challenging for lawyers, let alone for litigants in person.

121. Bearing in mind all the facts, and what I have been told about their impact on Mr Arshad and his personal and financial situation, I am not persuaded that it is “just” to permit any enforcement of the costs order against him.

122. It will be scant consolation to Mr Arshad, but I must end by recording my sympathy for the great difficulties which he has endured through no fault of his own.