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Further QOCS guidance for "Mixed Claims"

View profile for Claire Kretzmann
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The matter of Afriyie v Commissioner of Police for the City of London (Re Costs) [2023] EWHC 1974 (KB) concerned a claim for assault, battery and misfeasance in public office. The Defendant’s officers had tasered the Claimant, causing him to fall to the ground and hit his head. He was thereafter handcuffed. The liability judgement was handed down on 30 June 2023 and the claims were all dismissed. Allegations regarding fundamental dishonesty were however rejected.

As the Claimant was unsuccessful, the correct starting point under CPR 44.2(2)(a) was that the Claimant would be ordered to pay the Defendant’s costs. The parties had agreed that this was a “mixed claim” for the purposes of QOCS and therefore the key issue was whether the costs order could be enforced. The Defendant relied on the “mixed claim” provision under CPR 44.16(2)(b) and sought to enforce 25% of the costs order in addition to an interim payment of £10,000.

The Legal Position

Mrs Justice Hill noted that the relevant principles were recently set out in ABC & Ors v Derbyshire County Council & Anor [2023] EWHC 986 (KB), which referred to Brown v Commission of the Police of the Metropolis [2019] EWCA Civ 1724 where Coulson LJ held that "…if the proceedings also involve claims made by the claimant which are not claims for damages for personal injury…then the exception in r 44.16(2)(b) will apply". Under the CPR r 44.16(2) exception, "[o]rders 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".

Coulson LJ noted that QOCS applies to personal injury claims and further considered that this would not be limited to pain and suffering but will also include all other claims consequential in the injury, such as loss of earnings or time off work. In the instance of an RTA claim where the damage to the vehicle is not a claim for personal injuries, meaning the claim would therefore fall within the mixed claim exception. However the starting point should be that QOCS protection would apply and in most cases, QOCS will continue to apply, unless there are exceptional features such as grossly excessive car hire fees in the case of RTA claims.

The Issues

As the parties had agreed it was a mixed claim, the issue was whether it would be just to enforce the costs order.

Rather than considering the Claimant’s causes of action, Mrs Justice Hill considered it would be more helpful to consider the types of damages sought. These were claimed under five heads of claim; (i) basic damages for assault and battery; (ii) general damages for personal injuries; (iii) special damages; (iv) aggravated damages; and (v) exemplary damages. She considered the damages themselves:

She noted that (ii) was clearly damages for personal injury and so was much of item (iii), with the minimal exception of damage to the Claimant’s clothing. The Aggravated and exemplary damages were clearly not damages for personal injury but were punitive and compensatory in nature. However the issues underpinning the aggravated/exemplary damages were relevant to liability for assault, battery and misfeasance on the basis that the officers’ accounts and the need to use force were called into question. With this in mind, she concluded that the claim was overall for personal injuries.

Exceptional Features

Mrs Justice Hill then considered whether there were any relevant exceptional features and noted the following factors:

· The Claimant’s rejection of 3 drop hands offers, essentially led to wasted costs of the trial

· The claim was not limited to assault but instead raised serious allegations of assault and corruption

· The Claimant’s pursuit of misfeasance added noting to the claim and should have been withdrawn

· The Defendant succeeded on all issues

· It was found that the Claimant at least contributed to the incident

· There were "significant similarities" in the statements of the Claimant and his two witnesses

· It was found that the Claimant had been dishonest about his cooperation with the breath test procedure

· An interview that the Claimant provided to The Guardian ahead of trial was an unacceptable attempt to pressure the Defendant to settle the claim

Mrs Justice Hill found that these were not exceptional and were simply reflective of the usual incidences of litigation. More specifically, fundamental dishonesty was not proved and there was a finding that there was a justified concern relating to the officers in that they had colluded together to deliberately exaggerate the Claimant's conduct to make him appear more aggressive than he had in fact been. Even if these issues were considered to be exceptional, she noted that these points were also relevant to the personal injury claim in any event.

The Outcome

Permission under CPR 44.16(2)(b) was refused and therefore QOCS protection remained in place.