Pathan v Commissioner of Police of the Metropolis – Logical for QOCS to apply to all of the proceedings…even before the addition of the personal injury claim

The case

The claim arises from an action against the police for damages relating to an allegation of unlawful arrest and detention. The claimant initially brought the case in May 2019 without legal representation, which may be the reason there was no inclusion of a claim for personal injury (the claim form was drafted by the claimant’s husband).  It was only after the claimant obtained legal advice, and subsequently instructed a solicitor, that an application was made to amend the claim to include a claim for personal injury. In fact, this took two applications, first in August 2020 and then in November 2020, as there was some issue with supporting medical evidence. In January 2021 the claimant was granted permission for the amendment. 

The judge at the trial ruled that the arrest and detention was, in fact, lawful, so the claim failed in its entirety. On the matter of costs, the trial judge ruled that the claimant was to pay the defendant’s costs subject to the effect of qualified one-way costs shifting (“QOCS”). Dealing with QOCS, the trial judge ruled that as the claim did not initially include a claim for personal injury, the QOCS protection could only be applied to the period after the inclusion of the personal injury claim. This resulted in the claimant being responsible for all costs from inception of the claim, in May 2019, until the addition of personal injury in January 2021.

The Appeal

The claimant appealed the decision and argued that the entirety of the case should have QOCS protection. Citing firstly Brown v Commissioner of Police of the Metropolis [2019] EWCA Civ 1724  it was submitted that as the claim included a claim for personal injury then the entirety of the claim should be subject to QOCS protection. Secondly, the court was referred to the recent decision of I Achille v Lawn Tennis Association Services Ltd [2022] EWCA Civ 1407. In Achille the claim did originally include a claim for personal injury. However, this aspect was later struck out. It was concluded, on appeal, that QOCS protection still applied even after the strike out of the personal injury element. 

The defendant argued that the judge did not disapply QOCS but used rule 44.16(2)(b) to apply his discretion so there was no error of law, as alleged by the appeal. It was also argued that a “just” ruling would be either that QOCS did not apply to the period prior to the addition of the personal injury claim or that the application of 44.16(2)(b) was correct. Further, it was submitted by the defendant that a decision should be based on the facts of each case and in this matter, it would be unjust to afford the claimant QOCS protection for the period prior to the inclusion of the personal injury claim as this may then lead to an incentive for parties to simply amend its cases at any point to include personal injury, thus granting retrospective QOCS protection. 

The Decision 

Bourne J noted that the judge did not state that the case fell within rule 44.16(2)(b) so did not use the discretion afforded by this rule in his ruling. Further noting that the defendant did argue that the judge’s decision was not “permission” to enforce as it was a ruling based on the judge’s interpretation of the law, Bourne J agreed with the claimant that this interpretation was an error of law and the case of Achille is consistent with the correct approach, stating it would be logical for QOCS to apply to the entirety of the case. He went on to state that the approach when considering if QOCS should apply should be a binary “yes” or “no” as to whether personal injury is included. The answer to that question was “yes” in this case and, accordingly, it could and should not matter when the personal injury claim was added.  He concluded that QOCS protection applied to the entirety of the claim. 

The defendant sought to cross-appeal the decision to afford the clamant QOCS protection for the period following the addition of the personal injury claim. Bourne J in refusing permission in relation to the cross-appeal stated that, in his judgement, the judge’s original order was not outside the boundaries of reasonable disagreement so any cross-appeal was bound to fail. 

Take Away

It appears that the case of Achille had a particular bearing on the outcome of the appeal as while not entirely on all fours with the claim being brought here, there is an element of similarity between this case and Achille. In both cases there was a period of time during the proceedings when the claims being brought included a claim for personal injury claim and a period where they did not. 

It would seem, from the defendant’s view, that the error in this rests with the trial judge in failing to cite, specifically, that he used his discretion under 44.16(2)(b). That said, as noted by the Bourne J, it does not appear that the trial judge was using his discretion, but rather, had merely fallen into error in interpreting the law. In reviewing the arguments for each side it is clear the claimant had the better of them. The defendant’s concerns regarding claimants adding in personal injury claims to existing cases simply to benefit from the protection afforded by QOCS protection is significantly eroded, as noted by Bourne J, by the decision in Siddiqui v University of Oxford [2018] 4 WLR 62which included a warning against ”tacking on of a claim for personal injury damages”. 

Bourne J also went on to state that each case should be considered on its own merits by the respective judge; i.e. did he think this was a case in which personal injury was “tacked on”? As noted above, the claim form was initially drafted by the claimant’s husband without any legal advice being sought regarding the merits of the claimant’s claim and whether, in particular, it should include a claim for personal injury. It is reasonable to suggest that had the claimant sought legal representation then a personal injury claim would have been included at the outset. This was certainly not a case in which personal injury was “tacked on” in an underhand effort to ensure the safe haven of QOCS protection, and one would thing that any case brought including an unmeritorious claim for personal injury solely in order to achieve such a purpose would be easily identifiable by the court.  

A link to the judgment is here: https://www.bailii.org/ew/cases/EWHC/KB/2022/3244.html