QOCS and mixed claims

News | Fri 25th Oct, 2019

1. If Donoghue v Stevenson [1932] AC 562 was argued today, would Ms Donoghue have had QOCS protection? Not if she had been claiming for the cost of another bottle of ginger beer, as well as damages for gastro-enteritis, according to an “undoubtedly memorable” submission made to the Court of Appeal in Andrea Brown v (1) Commissioner of Police of the Metropolis (2) The Chief Constable of Greater Manchester Police (The Equality and Human Rights Commission Intervening) [2019] EWCA Civ 1724.
2. Brown is the first time that the Court of Appeal has grappled with the application of the QOCS regime to “mixed” claims, (i.e. where a claimant claims damages for personal injury and in the same proceedings also claims non-personal injury damages or other relief). Lord Faulks QC of 1 Chancery Lane was Leading Counsel for the successful respondent.
3. In my article I examine the Court of Appeal’s conclusion that a mixed claim does not benefit from automatic QOCS protection, and argue that the guidance it has given as to when a court should disapply QOCS in mixed cases is wrong.
4. The short answer to the question about Ms Donoghue, incidentally, is that she could not have claimed the cost of another bottle of ginger beer. She did not buy the first one. If she had, she could have sued in contract rather than tort. Her case would have never reached the House of Lords, and she would have been unknown to generations of lawyers.