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

CPR rules 44.13-44.16 provide for qualified one-way costs shifting (“QOCS”). That consists of automatic costs protection which ensures that claimants with a claim for damages for personal injury, whether they win or lose, do not emerge from the proceedings with an adverse costs liability. The rationale for its introduction was a perceived risk that costs risks would deter injured people from claiming compensation.

Rule 44.13 provides:

“(1)

This Section applies to proceedings which include a claim for damages –

(a)

for personal injuries;

(b)

under the Fatal Accidents Act 1976; or

(c)

which arises out of death or personal injury and survives for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934,

but does not apply to applications pursuant to section 33 of the Senior Courts Act 1981 or section 52 of the County Courts Act 1984 (applications for pre-action disclosure), or where rule 44.17 applies.”

CPR 2.3 defines a “claim for personal injuries” as:

“… proceedings in which there is a claim for damages in respect of personal injuries to the claimant or any other person or in respect of a person’s death, and ‘personal injuries’ includes any disease and any impairment of a person’s physical or mental condition . . .”

The QOCS protection is conferred by rule 44.14(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.”

Applying that rule, if an unsuccessful claimant recovers no damages, an order for costs against the claimant cannot be enforced.

Rules 44.15 and 44.16 provide exceptions to the rule. The relevant one for present purposes is in rule 44.16 which provides so far as relevant:

“(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 –

…

(b)

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

This is sometimes referred to as the “mixed claim” exception. It means that the Judge has a discretion to allow costs to be enforced where the claim included a claim that was not a claim for personal injuries as well as a claim that was.

Relevant guidance is found in Brown v Commissioner of the Police of the Metropolis [2020] 1WLR 1257 (“Brown”). There, a former police officer alleged the unlawful obtaining and use of private information about her and her daughter. She claimed damages for personal injury, as well as for misfeasance in public office and misuse of private information, and under the Human Rights Act 1998 and the Data Protection Act 1998. The trial judge held that there was automatic costs protection under QOCS. The High Court allowed an appeal, holding that this was a mixed claim to which the discretion applied. Dismissing a further appeal, Coulson LJ said:

“54 The starting point is that QOCS protection only applies to claims for damages in respect of personal injuries. What is encompassed by such claims? It seems to me that such claims will include, not only the damages due as a result of pain and suffering, but also things like the cost of medical treatment and, in a more serious case, the costs of adapting accommodation and everything that goes with long term medical care. In addition, contrary to the submissions advanced by Ms Darwin and Mr Jaffey, I consider that a claim for damages for personal injury will also encompass all other claims consequential upon that personal injury. They will include, for example, a claim for lost earnings as a result of the injury and the consequential time off work.

55 In other words, a claim for damages in respect of personal injury is not limited to damages for pain and suffring. For these reasons, as Whipple J noted at para 60 of her judgment, claimants in a large swathe of ‘ordinary’ personal injury claims will have the protection and certainty of QOCS.

56 I acknowledge that, in personal injury proceedings, another common claim will be for damage to property. For example, in road traffic accident litigation, there will usually be a claim for the cost of repairs to the original vehicle, and the cost of alternative vehicle hire until those repairs are effected. Such claims are not consequential or dependent upon the incurring of a physical injury: they are equally available to a claimant who survived the accident without a scratch as they are to a claimant who broke both legs in the accident. They are claims consequent upon damage to property, namely the vehicle that suffered the accident, and therefore fall within the mixed claim exception at rule 44.16(2)(b).

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.”

In ABC v Derbyshire County Council [2023] EWHC 1337 (KB) (“ABC”), parents and their two children brought unsuccessful claims because a local authority had taken the children into police protection and the parents were arrested on suspicion of child cruelty offences. All four brought claims under the Human Rights Act 1998. The children also claimed in negligence and the parents in false imprisonment. All sought damages for personal injuries and financial loss and aggravated damages, the latter amounting to one third of the total sum claimed. Following the guidance in Brown, Hill J ruled this was “in the round … a personal injury case”. The PI claims were supported by expert evidence and were not simply “tacked on” to obtain QOCS protection. The aggravated damages claim required no further evidence. The starting point was 100% protection, and a small reduction was made for the “exceptional feature” of some unreliable expert evidence being adduced.

In Afriyie v The Commissioner of Police of the Metropolis [2023] 1974 (KB) (“Afriyie”), police officers had used a taser on a claimant and handcuffed him. He claimed, unsuccessfully, for assault and battery and misfeasance in public office, seeking basic (i.e. non-PI) damages, damages for personal injury, special damages, aggravated damages and exemplary damages. Finding that this too was “in the round” a PI claim, Hill J ruled that QOCS protection should be applied with no deduction. She noted in particular that the grounds for the aggravated and exemplary damages claims arose from the same actions of the police which gave rise to the PI claim, and in any event the issues about the behaviour of the police, including their truthfulness, had to be considered in order to decide primary liability.