QOCS or Qualified One-Way Costs Shifting was introduced to protect the position of Personal Injury Claimants. In 2013 such claimants lost the right to recover, from the other side, the cost of insurance against the risk of adverse costs. The trade-off was QOCS. An unsuccessful claimant would not be ordered to pay the costs of the successful defendant, subject to certain defined exceptions. The aim was to ensure that victims had access to justice.

One problem that has arisen relates to mixed claims. What happens if a case has a personal injury element but also other heads of claim? One example might be a tenant who claims an order to force a landlord to carry out repairs and says that they have suffered from ill health as a result of the disrepair. Is this a personal injury claim for the purpose of QOCS.

The Court of Appeal has recently issued guidance in the case of Brown v Commissioner of Police of the Metropolis [2019] EWCA Civ 1724 . The primary case concerned a data breach in relation to a police officer. The claimant claimed damages for that, together with damages for personal injuries in the form of a depressive illness. She was awarded damages for the data breach, but the personal injuries claim was rejected. Did she have QOCS protection?

CPR 44.16 (2) (b) says that QOCS will not automatically apply where – ‘a claim is made for the benefit of the claimant other than a claim to which this Section applies.’ In other words, ‘not a personal injury claim’. At first instance HHJ Luba found that QOCS did apply. There was a claim for damages for personal injury, so the exclusion did not apply. On appeal, Whipple J disagreed. She found that a mixed claim was not one to which the section applied and therefore QOCS was not automatic. It was a matter for the discretion of the judge. The Court of Appeal agreed.

‘What is the proper interpretation of the words “other than a claim to which this Section applies”? It seems to me quite clear. “This Section” is the Section of the CPR setting out the QOCS regime. Rule 44.13(1) identifies the three types of claim which are covered by that regime: they are claims for damages for personal injury. Thus, if the proceedings also involve claims made by the claimant which are not claims for damages for personal injury (that is to say, claims “other than a claim to which this Section applies”), then the exception at r.44.16(2)(b) will apply.’ Coulson LJ

This clearly makes logical sense. A claim for a data breach does not become a claim for damages for personal injury just because such a claim is tacked on. Any losses flowing from the injury, such as loss of earnings or medical care would come within QOCS. But entirely separate claims, including damage to a vehicle following a car accident would come within the exception. A damaged car does not flow from the injury.

However, Coulson LJ went on to say that he would expect the court to exercise discretion in favour of the Claimant in most cases, because QOCS would have been available for the personal injury claim. But this is not automatic and will be a matter for the judge.

It remains to be seen whether this will act as deterrent to some claimants, such as the tenants referred to above, if they are not guaranteed protection if the claim fails.