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applying QOCS protection in a claim for personal injury and something else

7 August 2018

In The Commissioner of Police of the Metropolis v Brown [2018], the High Court ruled that a circuit judge was wrong to automatically apply QOCS protection to a claim for misuse of data which also included a claim for personal injury.

In ‘mixed’ claims which have both personal injury and non-personal injury elements the court has complete discretion as to whether to protect a claimant from enforcement of an adverse costs order.

Mrs Justice Whipple DBE stated that, where there was a claim for damages for personal injuries as well as for something else, the rule was clear that “the mechanism is quite simply to leave it to the court at the end of the case to decide whether, and if so to what extent, it is just to permit enforcement of a defendant’s costs order”.

Since the court retains full discretion as to the impact of QOCS on these 'mixed' claims they will be difficult to predict with certainty. We regularly deal with cases in which claims are advanced for credit hire and repair charges etc. totalling tens of thousands of pounds combined with only a small personal injury element of say under £2,000. We will be looking to test this point in those types of cases following a successful defence to see how the court will respond when we attempt to recover the defendant’s costs.

It will be interesting to see what the 'mix' needs to look like for QOCS to be disapplied?

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