Importance of the case
The costs rules that are central to the case concern one-way costs shifting – also known as ‘QOCS'. The legal question under appeal is whether the QOCS rules automatically apply to claims with both personal injury and non-personal injury aspects. In essence, if the QOCS rules are held to apply, then QOCS protect the claimant from the normal ‘loser pays’ rules such that any costs award can only be matched up to the level of damages awarded. However, the question under appeal is what occurs when the claim is a mixed claim i.e. it contains a non-personal injury element – and whether, in that circumstance, the exception provided under CPR 44.16(2)(b) applies which would grant discretion to the judge as to whether the claimant is afforded the protection of the QOCS regime.
Hausfeld is acting for the claimant/appellant, an ex-police officer, Andrea Brown, who originally brought a claim against the police force in the County Court for breach of data protection, breach of the Human Rights Act 1998, misfeasance in public office and misuse of private information. The case was widely reported by the press.
She was successful in three of the four heads of claim, but was not successful on the personal injury element of all four of the heads of claim. The County Court held that Andrea was entitled to protection under QOCS as the personal injury claims were directly linked to the non-personal injury claim, and it did not consider that the exception had been triggered. However, this decision was overturned on appeal in July 2018, in which it was held that the exception did apply to the claim, therefore allowing the Court to exercise discretion as to the costs award. This was important because the police force had made a Part 36 settlement offer ahead of the trial – if a settlement offer made under Part 36 of the CPR by a defendant is not beaten at trial, then the claimant may be exposed to certain costs consequences. In this particular case, Andrea had rejected the Part 36 settlement offer as the police force would not admit to any wrongdoing and refused to discipline any of the officers involved. Therefore, absent the protection under QOCS, the defendants would be permitted to enforce the costs award made in their favour (based upon the Part 36 settlement regime) against Andrea.
Andrea subsequently sought permission to appeal this decision, which was granted and this will be heard by the Court of Appeal in early October. In granting Andrea’s application for permission to appeal, Lord Lewison wrote that “The application of the QOCS regime to “mixed claims” is one of considerable importance which may affect many claims. The Appellant’s position has the support of the EHRC. Clarity is essential. Those factors make a compelling case for a second appeal”.
The Equality and Human Rights Commission intervened in the first appeal in support of Andrea’s position, and has also been granted permission to intervene in the Court of Appeal hearing.
As part of its commitment to access to justice, the Hausfeld team is acting for Andrea on a ‘pro bono’ basis for the upcoming appeal hearing in this David v Goliath case. Andrea is currently fundraising for the adverse costs risk that she would face in the event that the appeal is lost, and would be very grateful for any support.