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

SEARSON V THE CHIEF CONSTABLE OF NOTTINGHAM CONSTABULARY [2025] EWHC 1982 (KB)

In Searson v Chief Constable of Nottingham Constabulary [2025] EWHC 1982 (KB), Wall J upheld differentiated costs orders where two claimants on the same claim form received markedly different QOCS protection levels. The First Claimant, who brought no personal injury claim, was denied any QOCS protection and remained fully liable for the defendant’s costs. The Second Claimant, whose mixed claim included personal injury alongside false imprisonment and trespass, received 50% QOCS protection under CPR 44.16. Applying BB v Khayyat [2025] EWHC 443 (KB), the court confirmed that QOCS protection is determined by reference to each claimant’s specific claims, not by association with co-claimants. The trial judge’s evaluation that “the majority of the trial was taken up with the determination of the lawfulness of [the Second Claimant’s] detention and not an assessment of her pleaded injuries” justified limiting her QOCS protection to 50%. Wall J refused permission to appeal the costs order, emphasising that discretionary costs decisions require a high threshold for appellate interference – the decision must be one the judge “could not properly have come to.”

As to the first claimant, the judge was right to conclude that his claim did not enjoy QOCS protection. His claim did not include any claim for damages for personal injury. The fact that his claim was brought within the same proceedings and on the same claim form as the second claimant is irrelevant. The application of QOCS protection is determined by reference to the claim or claims made by the particular claimant in question: see BB and others -v- Khayyat and others [2025] EWHC 443 (KB). As to the second claimant, the judge correctly concluded that she had made a mixed claim and that accordingly it was necessary for him to carry out the evaluation as required by CPR 44.16 and as explained in the authorities. The judge carried out a careful evaluation and concluded that the Second claimant should have QOCS protection to the extent of 50% of the costs ordered against her. I see no real prospect of a successful challenge to the judge's assessment and conclusion

Citations

Parker v Chief Constable of Essex [2018] EWCA Civ 2788 Where a detention is unlawful due to procedural defects, nominal damages only may be awarded if the claimant would have been lawfully detained had proper procedures been followed. R v Chief Constable of Merseyside, ex p Roberts [1999] 2 Cr App R 243 A failure to conduct a lawful review of detention in compliance with statutory requirements renders continued detention unlawful, entitling the detainee to damages. Lumba v Secretary of State for the Home Department [2011] UKSC 12 In determining damages for unlawful detention, courts may consider whether the claimant would have been lawfully detained absent the procedural error, limiting recovery to nominal damages if so. BB v Khayyat [2025] EWHC 443 (KB) Qualified one way costs shifting protection applies only to the specific claim or claims made by a claimant; where a claim includes both personal injury and non-personal injury elements, partial protection may be applied proportionally.

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

Where a claimant’s claim includes damages for personal injury but is brought alongside or in addition to other claims, that claimant may be treated as bringing a “mixed claim” for the purposes of CPR Part 44 and QOCS protection, requiring the court to evaluate the extent to which costs enforcement should be permitted. [36, 39, 40]
In determining whether a claimant is entitled to QOCS protection and to what extent, the appropriate approach is to assess each claimant’s claim individually, rather than treating jointly brought claims as a single composite claim. [39]
A claimant who has not pleaded any claim for damages for personal injury is not entitled to QOCS protection, irrespective of whether a co-claimant in the same proceedings pursues such a claim. [36, 39]
The court retains discretion under CPR 44.16 to allow enforcement of costs orders against a claimant with a mixed claim, either in full or in part, having regard to the nature and scope of the personal injury claim and its relative weight and complexity compared to the remainder of the claim. [36, 40]
The judge’s exercise of discretion in apportioning QOCS protection in mixed claims is subject to appellate restraint and should only be interfered with where the decision was outside the bounds of reasonable judicial evaluation. [40]

"The Second Claimant, while making a personal injury claim, also pleaded that her detention was unlawful and actionable. She sought damages for unlawful detention for a period of approximately ten hours. Had her claim succeeded, she would have received substantial damages for that tort whatever the result of her personal injury claim might have been. 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. Costs are discretionary. I should only interfere with the decision taken below if it is one that the Judge could not properly have come to. It cannot be said that the Judge was arguably wrong to proportion the amount of costs that could be recovered from her as he did."

Key Findings In The Case

The First Claimant did not plead any claim for damages for personal injury, and accordingly, the judge found he was not entitled to Qualified One-Way Costs Shifting (QOCS) protection under CPR 44.13, regardless of the fact that his claim was conjoined with that of his spouse who did seek personal injury damages [36, 39].
The Second Claimant’s case was categorised as a “mixed claim” for the purposes of CPR 44.16, as her pleaded case included both a claim for personal injury damages and a claim for damages arising from alleged false imprisonment and trespass to property, requiring judicial evaluation of the appropriate extent of QOCS protection [36, 39].
The judge exercised his discretion under CPR 44.16 to permit enforcement of costs against the Second Claimant up to 50% of the assessed costs, based on a careful assessment of the personal injury element’s relative significance and scope compared to the tort claims for false imprisonment and trespass [36, 40].
The Second Claimant’s claim for personal injury was found to play only a subsidiary role in the proceedings, with the primary weight of the litigation concerning the lawfulness of arrest, detention, and property search. This justified the judge’s apportionment of QOCS protection on a 50% basis [40].
The appellate court upheld the trial judge’s exercise of discretion on QOCS apportionment, rejecting the contention that his decision was unreasonable or legally erroneous, and reiterated that such costs decisions should be interfered with only where clearly outside the bounds of judicial discretion [40].

"On paper, the First Claimant sought to argue that, although in his case there was no personal injury claim, his case and that of the Second Claimant was so bound up that he too should have been protected from enforcement. Sensibly, that argument was abandoned before me today."

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.

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