PI Brief Update

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.

1. 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.

1. 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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