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By Hazel Leeson

Nov 1st, 2019

QOCS protection denied in a ‘mixed claim’ case

Claimants beware – some solace for insurers … but only in limited circumstances …

In the recent Court of Appeal case of Brown v Commissioner the court has ruled that a claimant would not be granted Qualified one-way costs shifting (QOCS) protection just because a part of the claim included a claim for personal injury. 

The claimant made a claim for various losses arising from use of private information about her.  The claim was brought on a number of footings some of which were successful and a claim for damages for personal injury which was rejected at trial. 

The level of damages ultimately awarded was less than the Part 36 offer which the claimant had rejected prior to trial so the question was – could the defendant recover their costs after the Part 36 offer expired?  

This depended on whether the claimant had QOCS protection.  (Qualified one-way costs shifting  means that a successful defendant in a personal injury claim cannot usually recover costs). 

The claimant had been ordered to pay the defendant’s costs after the expiry of the Part 36 offer and so she appealed to the Court of Appeal where the appeal was dismissed.  

The court found that there was no justification to allow claims not involving personal injury to attract automatic QOCS protection.  The exception in CPR 44.16(2)(b) was found to deal with a situation where the claim for personal injury was only one of the claims being made in the proceedings.  In such a situation the automatic protection of QOCS did not apply.  Instead the issue was a matter of discretion for the judge.  


The court went on to provide useful guidance on the QOCS regime in standard personal injury cases.  It has always been clear that QOCS protection applies to claims for damages for personal injuries, however the court confirmed that such damages include pain and suffering but also all expenditure consequential upon that personal injury, e.g. medical treatment, loss of earnings etc. 

In contrast, a claim for damage to property, such as the costs of vehicle repairs, was not automatically dependent on a physical injury occurring and so fell within the mixed claim exception of CPR 44.16(2)(b).  However, if the proceedings can be said to overall be described as a personal injury claim then, unless exceptional circumstances can be applied, the judge would be expected to exercise discretion to achieve a costs neutral situation.

In reality therefore for most standard personal injury cases with an element of “mixed claims” the QOCS protection would continue to apply.  However, it is not hard to see how this latest guidance leaves open room for disagreement. 

The lesson 

The common law principle that costs follow the event remains.  Therefore, if you make a good part 36 offer, where a claim for special damages is not dependent on an injury claim, which is not beaten at trial, you may want to seek recovery of those costs.  We will keep you updated if there are further developments on this issue. 
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