The Exceptions to Qualified One way costs shifting…

Judgment was handed down in the case of Jeffery v Commissioner of Police for the Metropolis (2017) on 4th May. It was held that Morris J had been correct to decide that the exception to qualified one way costs shifting (‘QOWCS’)in CPR r.44.16(2)(b) applied following the dismissal of a claim against the police for assault, false imprisonment, malicious prosecution and misfeasance in public office. Significant parts of the claim were not for personal injury, and there was no requirement that the personal injury and non-personal injury aspects of the claim should be divisible for r.44.16 (2)(b) to apply.

The appellant appealed against a costs order made against him following the dismissal of his claims against the defendant police force.

His claim was dismissed after an 8 day jury trial. He alleged that the police had fabricated evidence to the CPS. As a result, he claims he suffered pain, distress, anxiety and loss of liberty and that he had suffered soft tissue injuries. He also alleged that the actions of the police exacerbated his paranoid schizophrenia.

At the costs hearing, the judge accepted that QOWCS applied. The police argued that the claim had been fundamentally dishonest and that the exception to QOWCS pursuant to CPR r 44.16(1) applied wherein Orders for costs made against the claimant may be enforced to the full extent of such orders with the permission of the court where the claim is found on the balance of probabilities to be fundamentally dishonest”. However, the Judge rejected that argument; he found that the exception in r.44.16 (2)(b) applied whereby a claim is made for the benefit of the claimant other than a claim to which this Section applies”. Albeit not clearly drafted, it was held that it had to be interpreted as a reference to proceedings other than a personal injury claim. In the present case, the appellant had sought substantial damages other than for personal injury; the allegations of misfeasance were integral to the claim and the personal injury aspects were merely supplementary.

In addition, the police submitted that the costs of the instant appeal were not, in any event, subject to QOWCS, as per the decision in Parker v Butler [2016] EWHC 1251 (QB), because it was not about the substance of the claim. However, the Judge held that the instant appeal did form part of the proceedings and, therefore, the QOWCS regime applied to it. The decision in Parker v Butler did not go so far as to say that if an appeal did not involve the substance of the claim then QOWCS would not apply.

It was ordered that the appellant pay 70% of the police’s costs of the action as per the decision of the Court below.

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