KA-2024-000208 - [2025] EWHC 1964 (KB)

The parties agreed that (1) this was a “mixed claim”, (2) the extent of any QOCS protection was therefore in the judge’s discretion but (3) on the law as it stands, the “starting point” would be complete protection if the claim could be properly characterised as a personal injury claim “in the round”.

By their Particulars of Claim, the Claimants claimed to have suffered “injury, distress, inconvenience, loss of liberty, interference with their person and pecuniary loss”, including (in each case) a psychiatric illness namely an adjustment disorder. As to that illness, each relied on the report of a psychiatric expert witness. They also claimed:

“(a)

Aggravated damages, due to the humiliating circumstances of their arrest and the high-handed, insulting, malicious and/or oppressive conduct of the arresting and custody officers; and/or

(b)

Exemplary damages, due to the oppressive, arbitrary and unconstitutional conduct of the arresting and custody officers, of which an award of purely compensatory damages would be insufficient to mark the Court’s disapproval.”

By the Prayer to their Particulars, each sought:

“(1)

Damages in excess of £5,000 but not exceeding £10,000 in total, including but not limited to: (a) Damages for pain, suffering and loss of amenity in excess of £1,500; and (b) Aggravated and/or exemplary damages. (2) Interest thereon as aforementioned.”

I have not seen the psychiatric reports but the judge said that the PI and non-PI damages would have been at a similar level. Given the fairly small sums claimed, and given the allegation of a psychiatric illness which presumably was at the lower end of the range which can be claimed, that conclusion is unsurprising.

In my judgment this case differed from ABC in that it was less “focused” on the personal injury side. That is not least because quantum was deferred to be dealt with if and when necessary.

However, this case also had a number of the features identified by Hill J in ABC, namely that all of the factual allegations and all of the evidence were necessary for the determination of the PI claims, the PI claims were supported by expert evidence (and it is agreed they were not just “tacked on”), the claim for aggravated damages did not generate any need for additional evidence, and any PI damages would have been a substantial proportion of any eventual award if the claims succeeded.

Similarly, this case had in common with Afriyie the feature that claims for aggravated and exemplary damages depended on the same facts as the PI claim. But Afriyie was more obviously a PI claim because the “act which was at the heart of the case” (Hill J at [28] was what caused the alleged injury whilst subsequent conduct was more the foundation of the claims for aggravated and exemplary damages.

I am not greatly assisted by Jeffreys v MPC [2017] EWHC 1505 (QB), [2018] 1 WLR 3633  That case pre-dated Brown and, more importantly, the decision by the trial judge that the PI claim was merely “ancillary” to a non-PI claim was not appealed to the High Court.

So, ABC and Afriyie were more clear-cut, but the present case poses the question of where the line is drawn when the Court decides whether a “costs-neutral result” should be the starting point.

That question was left open, in my judgment, by Brown. When Coulson LJ referred to the question whether “proceedings can fairly be described in the round as a personal injury case”, I doubt he intended that formula to be read as if it were a statutory provision. I note also that in context, paragraph 57 of his judgment was referring to claims which were “mixed” because they included claims for both personal injury and damage to property, as is very commonly the case in claims arising from accidents. Coulson LJ distinguished such cases from the one before him, where personal injury might have been viewed as a somewhat incidental consequence of an interference with personal data. Neither type of case was on all fours with a false arrest case.

In my judgment, the fact that – as the Defendant rightly agrees – this is not a case of “the … ‘tacking on’ of a claim for personal injury damages (regardless of the strength or weakness of the claim itself) … just to hide behind the QOCS protection” (Brown at [58]) is very important. These claims included an entirely viable head of loss consisting of personal injury which is not at all unusual in a claim for the torts which were alleged in this case, and which was supported by prima facie credible expert evidence. And, the personal injury head of loss would, or could be expected to, account for a substantial proportion of any damages that would be awarded if the claims succeeded.

In those circumstances, I consider that it was an error to apply the discretion as to costs protection on the basis that this was not, in the round, a personal injury case. That therefore undermined the exercise of discretion by the Judge.

I will invite submissions on the question of what if any order I should make in respect of this ground of appeal, in light of my decision on the first ground.