The Commissioner of Police of the Metropolis v Brown. Chief Constable of Greater Manchester v Brown [2018] EWHC 2046 (Admin)

Judge: Whipple J

Citation: [2018] EWHC 2046 (Admin)


Although in parts obiter dicta, the Court of Appeal stated that a Defendant can enforce an order for costs against damages awarded to a Claimant against a different Defendant. However, where settlement is reached, be it by way of Part 36 settlement or recorded in a Tomlin Order, the Court has not ‘ordered’ those damages and therefore  set off cannot occur.

Longer text:

Having reviewed Rule 44.13 (Qualified One Way Costs Shifting) and the relevant case law, Whipple J stated:

  1. Thus, CPR 44.16(2) applies in any proceedings where a claim has been made for damages for personal injury as well as for something else (i.e. as well as a claim other than a claim for damages for personal injury).  This is a ‘mixed claim’.  50.  Once that point is resolved, the construction of CPR 44.16(2)(b) becomes clear.  Mixed claims are within the scope of QOCS, by virtue of CPR 44.13(1).  But CPR 44.16(2)(b) provides a mechanism to deal with mixed claims.  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 the Defendant’s Costs Order.

[ … ]

  1. The key is in the definition of a ‘personal injury’ claim, because it is only a personal injury claim which carries automatic entitlement to QOCS protection. Personal injury claims are claims for damages in respect of personal injuries (see the definition at CPR 2.3).  The question to be asked in any given case seems to me to be this: in the proceedings, is the Claimant claiming anything other than damages for personal injuries? (i) If the answer is no, then QOCS protection applies automatically (subject of course to one of the other exceptions applying, where the case is struck out or dishonesty is found).  (ii) If the answer is yes, then the case is subject to the Court’s discretion under CPR 44.16(2)(b).”



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