News Category 3
BB and others v Moutaz Al Khayyat and others [2025] EWHC 443 (KB) - Andrew Ratomski, Temple Garden Chambers
20/03/25. Date of judgment: 28 February 2025
This decision in long-running litigation between Syrian dissidents and the Doha Bank (“the Bank”) and others concerning financial support to conflict groups raised an important point of principle concerning the QOCS regime. By this stage, a group of the claimants in the action had discontinued (“the discontinued Claimants”) whereas another group had continued although those claims were later struck out (“the continuing Claimants”).
The issue
At a costs hearing on consequentials to Soole J’s dismissal of an application from the discontinuing Claimants that the presumptive costs rules of 38.6 be disapplied, a live issue emerged as to the Bank’s entitlement to an interim payment on account of costs. The discontinuing Claimants argued that the court had a discretion to grant them QOCS protection against enforcement of any costs order pursuant to rule 44.16(2)(b) to be considered after detailed assessment and not to be compromised by applications for interim payments.
The arguments
The discontinuing Claimants argued that the reference in 44.13(1) to “proceedings” should comprise allclaims of all claimants in the action rather than by reference to the individual claim(s) of each individual claimant. Mixed claims fall to be assessed in the same way, relying on the guidance describing QOCS as a “broad gateway” in Brown v Commissioner of Police of the Metropolis [2019] EWCA Civ 1724; [2020] 1 WLR 1257, paras. 36 and 57. The discontinuing Claimants also relied on the example of Achille v Lawn Tennis Association Services Ltd [2022] EWCA Civ 1407; [2023] 1 WLR 1371 where a claimant’s QOCS protection survived the strike out of his personal injury claim where a claim for injury to feelings remained.
As to these “overall proceedings”, the continuing Claimants claims did include damages for personal injuries, specifically physical and psychiatric injury. The submission advanced was that regardless of whether any individual claimant who had discontinued had made a claim for personal injury damages, the court had had a discretion to grant QOCS protection in whole or in part against enforcement.
The decision
The judge rejected those arguments and held there was no basis for the Discontinuing Claimants to obtain QOCS protection. Unlike the continuing Claimants, neither the discontinuing Claimants’ re-amended Particulars of Claim or confidential schedules did in fact particularise injury claims.
The judge held that these arguments were in conflict with the Court of Appeal authorities which demonstrated that (para. 16):
“…in every case where QOCS protection falls for consideration, the exclusive focus is on the claim or claims of particular claimant within the proceedings. If the claim(s) of the individual claimant in question do not include a claim for damages for personal injuries, there is no QOCS protection.”
So in Wagenaar v Weekend Travel Ltd [2014] EWCA Civ 1105; [2015] 1 WLR 1968 at para. 38 the Court of Appeal held that “the whole thrust” of rules 44.13 to 44.16 was that they concerned claimants themselves making a claim for personal injury. Similarly in Brown, Coulson LJ considered that whilst 44.13 was “widely drawn”, the CPR intended to exempt from QOCS claims which were not claims for damages for personal injury. Mixed claims are to be analysed at the level of the individual claimant who is himself making mixed claims.
The judge held there was no principled basis for a claimant who makes no claim for injury to enjoy QOCS protection merely because he is joined in proceedings with other claimants who do make claims and gave this example:
“… where a negligent driver collides with another car. The owner-driver of that car is uninjured but his car is damaged. However his passenger is injured. Since each claim arises from the common collision, both claims are for convenience brought within the same Claim Form. There is no basis for the owner-driver to enjoy QOCS protection in respect of his claim, merely because his co-claimant has a claim in those proceedings for personal injury; nor for him thereby to be in a better position than if the two had issued separate Claim Forms.”
Discussion
These were unusual claims that provided a good example to explore the application of QOCS to co-claimants in larger proceedings. The RTA example Soole J cites illustrates how in fact the issues are far from straight forward especially where issues common to a party with and without QOCS protection needs to be determined, most obviously liability. This issue will arise again in group claims where not all parties claim to have suffered the same or any injury.
https://caselaw.nationalarchives.gov.uk/ewhc/kb/2025/443?query=Moutaz+Al+Khayyat
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Child Sexual Abuse Litigation Reforms - Philip Matthews, Temple Garden Chambers
18/03/25. The UK Government has announced its intention to implement a number of key recommendations from the Independent Inquiry into Child Sexual Abuse (IICSA). There is no draft legislation as of yet, however the Government’s Responses to Consultation sets out the direction of travel.
Most significantly, the first Consultation Response proposes to remove the usual three-year limitation period for filing personal injury claims in the context of civil actions arising from child sexual abuse. This change was motivated by the evidence heard by the IICSA that a significant number of claims are being rejected on limitation grounds because it can take “decades for survivors to feel able to discuss their sexual abuse”. There will be a safeguard proviso in cases where a fair trial would be impossible – however, the burden of proof to establish this will rest with Defendants, essentially reversing the burden of proof imbedded in the current CPR 33 regime.
The changes will not be retroactive, and so will not enable Claimant’s to re-open already decided cases (but may apply to cases that are pending).
The second Consultation Response proposes to amend the ‘law of apologies’ (i.e., the Compensation Act 2006, section 2) to encourage employers and institutions to issues apologies for wrongdoing by their agents, without fear of liability. IICSA heard that in many child sexual abuse cases, an apology by an institution was desired but never delivered, blocking victims’ path to closure.
These changes to the civil justice sphere are taking place alongside wider legal reforms, including: stronger criminal sentences for ‘grooming’ offences; a mandatory reporting law, requiring professional to report suspicious of child sexual abuse; and the creation of a new offence to penalise organisation that cover up child sexual abuse.
Image ©iStockphoto.com/sodafish
Woodcock v Chief Constable of Northamptonshire Police; HD, PD, CJ, PJ and OB v Chief Constable of Wiltshire Police [2025] EWCA Civ 13 - Philip Matthews, Temple Garden Chambers
26/02/25. This judgment involved two separate appeals concerning police liability for failing to prevent harm caused by third parties. The appeals were heard together as they raised similar legal issues.
Woodcock v Chief Constable of Northamptonshire Police
Ms Woodcock was attacked and seriously injury by her ex-partner, despite prior reports to the police about his threats and his breaches of bail conditions. She brought an action against the police in negligence, claiming that they failed to protect her, specifically by not warning her of his presence prior to the attack. The claim was initially dismissed at first instance, but on appeal Ritchie J found that the police were under a duty to warn Ms Woodcock and remitted the case for further consideration of causation.
CJ and Others v Chief Constable of Wilshire Police
Five victims of sexual abuse sued the police, alleging a failure to investigate incident images of children previously found on the perpetrator’s laptop. The action was brought in negligence and under the Human rights Act (Article 3). The High Court dismissed their claims, finding no common law duty of care, and ruling that the police’s investigative duty under Article 3 was not engaged until they were aware of actual abuse.
The Court of Appeals Decision
The Court of Appeal ruled in favour of the police in both cases, emphasising established legal principles that public authorities, including the police, do not generally owe a duty of care to prevent harm by third parties.
In Woodcock, the Court found that the police’s failure to warn was an omission, not a negligent act making the situation worse. The submission that the police had assumed a responsibility for Ms Woodcock’s safety was rejected.
Likewise, in CJ the Court upheld the High Court’s ruling that the police had no duty of care in negligence, and their duty under HRA Article 2 only arise when they were informed of the abuse suffered by the claimant’s not when the laptop images were previously discovered.
Status Quo Reaffirmed
This judgment reinforces existing case law which limits police liability for failures to prevent harm caused by third parties. Specifically, the following principles have been affirmed: the police are not liable for failing to prevent harm, save for the narrow exceptions where they have assumed responsibility or made matters worse; and Article 3 of the ECHR does not impose a broad investigatory duty unless authorities are aware of a real and immediate risk.
https://www.bailii.org/ew/cases/EWCA/Civ/2025/13.pdf
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Birley v Heritage Independent Living Ltd [2025] EWCA Civ 44 - Philip Matthews, Temple Garden Chambers
25/02/25. This appeal concerns costs and the interaction between qualified one-way costs shifting (QOCS) in personal injury claims and cost recovery rules in information law claims.
Background
Ms Taylor sued Heritage Independent Living Ltd (Heritage), alleging that in 2018, Heritage unlawfully disclosed her criminal convictions to a friend, violating the General Data Protection Regulation (GDPR), the Data Protection Act 2018, and her rights to privacy and confidentiality. She also claimed the disclosure caused psychiatric injury.
Ms Taylor initiated proceedings in August 2021, but passed away in September of that year. Her executors, Birley and Bell, took over the case.
Procedural Issues
A stay of proceedings was granted but after the claim form’s deadline for service had expired. Heritage successfully applied to have the claim struck out for late service, and the court ruled that QOCS (which normally protects personal injury claimants from adverse costs orders) did not apply because the late service constituted an abuse of process. The claimants appealed this ruling.
First Appeal – County Court Decision
HHJ Owen determined as follows: i) the late service of the claim form did not constitute an abuse of process, as there was no evidence of intentional misconduct; and ii) QOCS should apply because the claim included personal injury. Therefore, the original order disapplying QOCS was overturned, and Heritage was ordered to pay the claimants’ costs.
Submissions to the Court of Appeal
Heritage appealed, submitting that the claimant had ‘cherry-picked’ pre-action protocols—seeking the advantages of both QOCS (for personal injury) and the cost recovery rules in media cases (which historically allowed for recoverable success fees and ATE insurance). It was further argued that the failure to serve on time was an abuse of process, justifying the strike-out and costs against the claimants; and that the order in the first appeal was unfair, as the claimants had lost on some issues.
Court of Appeal Judgment
The Court of Appeal dismissed Heritage’s appeal.
- On Abuse of Process: the Court held that late service of the claim form, while negligent, did not amount to an abuse of process. There was no deliberate wrongdoing, only procedural error.
- On QOCS and ‘Cherry-Picking’: The Court ruled that QOCS applies as long as a claim includes personal injury. The fact that media-related claims once allowed success fee recovery did not affect QOCS protection.
- On Costs: The claimants were the overall winners in the first appeal, so the costs order in their favour was reasonable.
Analysis
Birley underscores that QOCS applies to cases involving personal injury, even if other claims are present; and that information law claims and personal injury claims can co-exist (but procedural clarity is necessary)
https://www.bailii.org/ew/cases/EWCA/Civ/2025/44.html
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Aviva Insurance Limited v Atiquillar Nadeem and Masoud Sidiqi [2024] EWHC 3445 (KB) - Andrew Ratomski, Temple Garden Chambers
21/02/25. Date of judgment: 16 October 2024 (but recently published).
The judgment from HHJ Tindal sitting as a judge of the High Court in these recent contempt proceedings traverses significant ground on findings of fundamental dishonesty under section 57 of the Criminal Justice and Courts Act 2015. I do not seek to summarise every aspect of the decision but I do wish to highlight the aspects that point to potential future areas of controversy in a rapidly developing area of personal injury practice.
The facts
The first defendant had brought a claim for personal injury arising from a road traffic accident on 14 April 2018 for which liability had been admitted and having claimed to have been a passenger who suffered minor whiplash injuries to his neck and back. The second defendant did not make a claim but did give a witness statement in support of that claim and said he was present in the vehicle. At a trial in the Count Court at Willesden on 3 June 2021 the first defendant gave evidence. His claim was found to be fundamentally dishonesty and the judge made findings to the criminal standard of proof following Spencer J’s decision in Aviva v Kovacic [2017] EWHC 2772 (QB).
The contempt grounds concerned alleged false statements to the...
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