Application of QOCs in Mixed Claim can't be dealt with until all claims are concluded
Posted on 27th October 2022 at 13:26
By Sean Linley, Costs Draftsman
The Court of Appeal has delivered an interesting judgment on the application of QOCs in a mixed claim where the claim for Personal Injury had been struck out on the basis there were no reasonable grounds to bring the claim but a claim for injury to feelings (exempt from QOCs) remained live and to be tried.
In Achille v Lawn Tennis Association Services Ltd  EWCA Civ 1407 (27 October 2022) at first instance the Court held that the Defendant could enforce its costs pursuant to CPR r44.15 on the basis that the Claimant had lost its QOCs protection because there had been no reasonable grounds to bring the claim.
The Claimant appealed citing that there was still a claim for injury to feelings to be determined and as such the Court was wrong to allow enforcement of the Defendant's costs where proceedings were on-going. The Defendant sought to argue that "the proceedings" in CPR 44.15 refer to a Claimant's claim for personal injury and as that had been struck out, the order for costs could be enforced.
The Court of Appeal was tasked with considering the meaning of CPR 44.15 and proceedings and whether it was therefore right that the decision as to QOCs protection be made at the conclusion of his full claim.
It was concluded that the term "proceedings" in CPR 44.13 refers to all of the claims made by a claimant against a single defendant, when one such claim is a claim for personal injury. The question was therefore whether "proceedings" in CPR 44.15 should be given a different meaning. The Court of Appeal ultimately found that it did not.
The Court of Appeal stated that:
32. In my judgment it is not necessary to interpret "proceedings" in CPR 44.15 as referring to the personal injury claim alone in order to give effect to this deterrent purpose. CPR 44.16 enables this purpose to be achieved in a mixed claim case where the personal injury claim is struck out. Mr Lyon accepted and indeed urged this analysis upon us, albeit that this was contrary to the position taken by the claimant in the court below. Thus, in a mixed claim case where the personal injury claim is struck out at an early stage but the proceedings continue, CPR 44.16(2)(b) enables the court to order that a costs order made against the claimant may be enforced to its full extent. That is because such a case is one where "a claim is made for the benefit of the claimant other than a claim to which this Section applies", that is to say, a non-personal injury claim is made (Brown v Commissioner of Police at  to).
33. There is, therefore, no reason why the judge striking out the personal injury claim should not make an order for costs and assess those costs summarily, if it is appropriate to do so. That will often be the convenient course. The question of enforcement of the order can then be deferred to the conclusion of the proceedings, to be dealt with pursuant to CPR 44.16 – or, if the surviving claim succeeds, by being set off against any damages pursuant to CPR 44.14.
34. It is true that in such a case the permission of the court must be obtained before enforcement under CPR 44.16 can take place, and that permission will only be given to the extent that the court considers it just to do so. Accordingly, it follows that a claimant in a mixed claim case where the personal injury claim is struck out is not in quite as good a position as a claimant where a personal injury claim is struck out and there is no other claim. However, as the court has power in the mixed claim case to make whatever order it considers will meet the justice of the situation, it is impossible to say that the claimant's interpretation results in injustice or defeats the purpose of the QOCS rules.
35. I respectfully disagree, therefore, with the judge's view that her interpretation is necessary to further the purposes of the QOCS regime. CPR 44.16 can bear the load which the judge envisaged could only be borne by CPR 44.15.
36. For the same reason, the defendant derives no assistance from resort to the overriding objective in CPR 1.1. CPR 1.2 requires the court to interpret the rules in order to give effect to the overriding objective, but as the objective is "to deal with cases justly and at proportionate cost", and as CPR 44.16 enables the court to make whatever order it considers just in a mixed claim case where the personal injury claim is struck out, there is no need to give "proceedings" in CPR 44.15 a different meaning from that which it bears elsewhere in the QOCS rules in order to do so.
The decision of this court in Brown v Commissioner of Police describes how the CPR 44.16 discretion should be exercised in a mixed claim case. Lord Justice Coulson (with whom Lord Justices McCombe and David Richards agreed) explained that the QOCS protection which would have been available for the personal injury claim if it had stood alone will be a relevant and often important factor to take into account:
"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. …
58. It is however important that flexibility is preserved. It would be wrong in principle to conclude that all mixed claims require discretion to be exercised in favour of the claimant, because that would lead to abuse, and the regular 'tacking on' of a claim for personal injury damages (regardless of the strength or weakness of the claim itself) in all sorts of other kinds of litigation, just to hide behind the QOCS protection (as Foskett J warned in Siddiqui  4 WLR 62)."
38. It is clear from this guidance that, when the court comes to consider what order to make under CPR 44.16 at the conclusion of the present proceedings, it will be able to take account of the fact that the personal injury claim was struck out on one of the grounds identified in CPR 44.16 and make whatever order is just in the light of that fact, together with all the other circumstances of the case.
Accordingly the appeal was allowed. The decision does not guarantee QOCs protection to the Claimant but shows that a holistic approach must be taken when considering the application of QOCs to a mixed claim. This is consistent with the recent decision in Wokingham Borough Council v Arshad  EWHC 2419 (KB) (29 September 2022).
It is a reminder to practitioners involved in mixed claims where QOCs applies that the Court should not permit enforcement until the entirety of the proceedings have concluded, though they will take any relevant factors into account when determining whether or not QOCs is to apply in a mixed claim.
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