A case for extending QOCS

The Police Actions Lawyers Group has argued since the Jackson reforms that the lack of recoverability of after the event (ATE) insurance premiums from defendants has created an insurmountable barrier to access to justice for claimants with actions falling outside the qualified one-way costs shifting (QOCS) regime, if they cannot afford lawyers or obtain legal aid funding.

The difficulty arises from the fact that the cost of a claimant’s ATE premium can no longer be recouped from the other side if the claimant’s case is successful.

Similar arguments were made by Professor John Peysner in his research paper for the 2014 Civil Justice Conference, which stated: “…on the grounds of justice in a classic ‘David and Goliath’ situation [there is] an unstoppable argument for QOCS relief in claims against the police.

The Police Actions Lawyers Group in a cogent submission pointed out that an individual wrongly arrested and, possibly, imprisoned is only protected by QOCS if insult is added to injury and they are assaulted as well.”

The paper notes that the Independent Police Complaints Commission acknowledges its resourcing difficulties in investigating police wrongdoing and states: “Citizens need lawyers to represent them and ATE is hard to obtain: QOCS must be extended.

Proposals

Under the current regime, if a claimant is successful in their action against the police, they will still be liable to pay for their own ATE premium.

In other litigation, claimants may be able to meet the cost of this premium from their damages. However, as discussed in the previous Weightmans’ Police QOCs legal update, dated July 2014, ATE premiums are high in police cases but damages are fairly low.

Examples of the sorts of cases that in the Police Actions Lawyers Group’s view ought to be considered for QOCS protection include the following claims:

•Claims relating to wrongful arrest or malicious prosecution;

•Claims under the Human Rights Act 1998;

•Claims arising from a death in custody;

•Claims alleging prohibited discrimination under the Equality Act 2010; and

•Claims by way of judicial review.

Claims for false imprisonment under the Equality Act and Human Rights Act attract relatively low damages, significantly lower than the cost of ATE premiums, and claimants are unlikely to be awarded damages in judicial review claims.

The Civil Justice Council (CJC) also commented that claims against the police raise a technical question about QOCS protection and the extent to which it should apply in ‘mixed claims’, that is, claims with a personal injury element. It was noted by the CJC that this appears to be an issue which may require further consideration.

The Weightmans Police team has found this grey area to be exploited by unsuccessful claimants after trial who seek to argue that QOCS should apply to other aspects of the action such as false imprisonment and malicious prosecution. Civil Procedure Rules (CPR) 44.13 states that QOCS applies to “…proceedings which include a claim for damages (a) for personal injuries”.

However, Jackson did not deal with claims such as false imprisonment and malicious prosecution and it is arguable that such claims are contemplated by CPR 44.13 and QOCS should apply to the personal injury element of the claim only.

It is useful to consider how the definition of personal injuries has evolved.

In A v Hoare1, Lord Hoffman traced the history of the meaning, pointing to the Report of the Committee on the Limitation of Actions 1949, which specifically excluded false imprisonment and malicious prosecution from the definition of actions for personal injuries. Certainty regarding mixed claims will certainly be welcome, if QOCS is not extended to cover all police claims.

The extension of QOCs to all civil actions against the police would mean that claimants will not be exposed to a costs risk. The only exception is if the claimant is found to have been fundamentally dishonest (Gosling v Screwfix), if the claimant fails to beat a Part 36 offer or if a claim