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

Mr Murray acknowledged that whilst an appellate court must accord appropriate respect to a trial judge’s exercise of a discretion as to costs, QOCS is a developing area in which there may be more room for error.

Mr Murray submitted that this case was very similar to ABC and that here, as in that case, the starting point should have been 100% protection.

He submitted that the inclusion of claims for basic, aggravated and exemplary damages does not prevent this from being, in the round, a personal injury case. There is no dispute that this is a “mixed claim”.

Mr Murray emphasized that it does not matter which torts the claimants relied on, Coulson LJ having indicated in Brown that what matters is the remedy, not the cause of action.

In this case he submitted that the manner of the arrest was the basis for all of the claims, i.e. for personal injury as well as for aggravated and exemplary damages. The claimants could easily have limited their claim to personal injury damages alone, in which case the evidence would have been identical and the claim would not be within even a discretionary exception to QOCS.

Meanwhile the personal injury claims were substantiated by expert evidence, and by the claimants’ factual evidence which was not challenged.

Moreover, no additional disclosure or evidence was required to deal with the heads of damage other than personal injuries. Whilst there was little mention of the personal injury issue at trial, that can often happen in a personal injury claim e.g. where there is a trial of liability only. In this case the parties had made a sensible agreement to focus on liability in the hope that quantum would be agreed if the Claimants succeeded.

Mr Murray also submitted that there were no “exceptional features” to justify any departure from the starting point of no liability for costs.

Finally Mr Murray noted that the Judge appears to have misunderstood Coulson LJ’s reference to a “costs-neutral” result, which in context meant that the claimant was not liable for costs.

In response, Mr Clemens emphasizes that the trial judge, who was best placed to assess the facts, exercised a discretion as to costs and therefore this court should not interfere unless he made some fundamental error. The judge, he submitted, applied the correct test by asking whether this was “in the round” a personal injury claim. Mr Clemens submitted that the judge was entitled to view this case as being essentially concerned with the claimants seeking vindication and a finding that their arrests were not necessary.

Mr Clemens sought to distinguish ABC and Afriyie.

He said that in ABC, unlike this case,negligence claims (by the children) and HRA and false imprisonment claims by the parents were said at [42] to have been pursued at trial “almost exclusively for the purpose of obtaining personal injury damages” and at [43] to have been seen before trial as “focused” on the personal injury claims. Several experts were instructed to deal with personal injury issues and all the disclosure and evidence was necessary for the determination of the personal injury claims. Most of the damages sought were for personal injuries.

Mr Clemens emphasized that Afriyie, unlike this case, arose from physical acts i.e. tasering which caused the claimant to fall and suffer injury, and handcuffing. All of the issues about motivation and misfeasance were concerned with those acts. There was a live issue at trial about the extent of any injury and various experts were relied on by the claimant to deal with personal injury issues.

Finally Mr Clemens submitted that the QOCS regime was not intended to capture police cases of this kind, where claimants may elect a trial by jury which is liable to increase costs.

In answer to a question from me, Mr Clemens said that it was not contended that this was a case where a spurious personal injury claim was “tacked on” in an attempt to obtain costs protection.

Mr Murray responded on those last two points, contending that Afriyie was not materially different because in a personal injury claim there is no material distinction between physical and psychiatric harm, and pointing out that police cases could have been excluded from the QOCS regime but were not.