Fantastic exceptions to QOCS and where to find them

Andrea Brown v The Commissioner of Police of the Metropolis & the Chief Constable of the Greater Manchester Police & the Equality and Human Rights Commission (Intervener) [2018] EWHC 2046 (Admin)

High Court
Queen’s Bench Division
Mrs Justice Whipple DBE

Executive summary

The appellant police forces successfully appealed the trial judge’s ruling on costs that qualified one-way costs shifting (“QOCS”) applied, automatically, to protect the claimant from any adverse costs order which may be made in the police’s favour following her failure to beat their respective Part 36 offers. Whipple J ruled that the claimant’s case came within the exception to QOCS in CPR 44.16 (2) (b) and that the trial judge did have a discretion to permit enforcement of the defendant’s costs order; to the extent that he considered just. HHJ Luba QC will now be asked to exercise his discretion at a hearing on 6 September 2018.

Background

This was an appeal against a judgment given by HHJ Luba QC in the Central London County Court on 24 March 2017 in relation to one aspect of the costs of an action brought by Ms Andrea Brown, against two defendants, the Commissioner of Police of the Metropolis and the Chief Constable of Greater Manchester Police. Judgment was handed down on 31 July 2018.

The claimant was a serving officer in the Metropolitan Police Service (“MPS”) until November 2013. In December 2011, while employed but on sick leave, she travelled to Barbados with her daughter without notifying her line manager. The MPS submitted a request for information to the National Border Targeting Centre which was managed by Greater Manchester Police (“GMP”). GMP responded by email giving the MPS information about the claimant’s trip to and from Barbados, attaching a copy of her passport and a print-out containing other information about her recent travel arrangements and passport details. The MPS also approached Virgin Atlantic and asked for information about the details of the flight and booking by the claimant. They were provided with such information by Virgin Atlantic.

That information was used against the claimant in a disciplinary process which culminated in a finding that she had a case to answer but that a sufficient sanction would be “informal management action”.

The claimant sued both forces. She claimed that they had misused facilities at their disposal for gathering data and information. The claimant pursued four causes of action: (1) breaches of the Data Protection Act 1998 (“DPA”), (2) breaches of the Human Rights Act 1998 (“HRA”), (3) misfeasance in public office and (4) the tort of misuse of private information. The police conceded (1) and (2). The claimant lost on (3) and won on (4).

The claimant advanced a claim that she had sustained “damage” for the purposes of section 13 (1) of the DPA, in the form of depression. The trial judge rejected that claim on the ground that she had not suffered personal injury in the form of any recognised psychiatric injury, and that in any event the breaches of the DPA did not cause or materially contribute to any such injury as she might have been able to establish. The judge did accept that she had suffered distress, sufficient to warrant an award of damages under section 13 (2) DPA… READ FULL ARTICLE