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The introduction of Qualified One-Way Costs Shifting (QOCS) provisions in 2013 significantly changed the landscape of litigation for defendants. Save for limited exceptions, a defendant who successfully defends a personal injury (PI) claim cannot enforce an order for costs against the claimant.
One exception, often relevant to police forces (and defendants who face similar claims), is contained within CPR 44.16(2)(b): ‘Orders for costs made against the claimant may be enforced up to the full extent of such orders with the permission of the court, and to the extent that it considers just, where…a claim is made for the benefit of the claimant other than a claim to which this Section applies’ i.e. if the claimant pursues claims other than a PI claim within the same litigation - a mixed claim.
Mixed claims against the police
Discretion to grant permission to enforce costs in a mixed claim was firmly established within Brown v (1) Commissioner of Police of the Metropolis (2) The Chief Constable of Greater Manchester Police [2019], in which Clyde & Co represented GMP.
This claim was for damages under the Data Protection Act (DPA) 1998, the Human Rights Act (HRA) 1998, misfeasance in public office and misuse of private information. The claimant succeeded in her claims under the DPA, HRA and misuse of private information, while the claim for misfeasance was dismissed.
The first instance judge held that the claimant was entitled to full QOCS protection as her claims included an element of PI together with non-PI elements and the claims were directly linked. However, the Court of Appeal confirmed that non-PI claims did not justify automatic QOCS protection simply because the claim included PI damages, and emphasised the need to discourage claimants from ‘tacking on’ PI claims to ‘hide behind’ QOCS protection.
Comparing false imprisonment claims outcomes
Since Brown, the application of CPR 44.16(2)(b) has been unpredictable. By way of example, Clyde & Co have successfully defended and secured orders to enforce 50% of the defendant’s costs in a claim for false imprisonment and trespass to property, where the claimant alleged resulting psychiatric injury; and to enforce 70% of costs in a claim where the claimant alleged false imprisonment, assault, malicious prosecution and misfeasance in public office (with PI damages arising only from the alleged assault).
In contrast, in ABC & Others v (1) Derbyshire County Council (2) The Chief Constable of Derbyshire Constabulary [2023] the claimants claimed, and had dismissed, damages for breaches of HRA, negligence, and (against the police) false imprisonment. The Court permitted enforcement of just 5% as the claims were heavily focused on PI, which was not ‘tacked on’, and the non-PI claims represented a very modest part of the claim, adding modest costs.
In July 2025, two High Court decisions further demonstrated the unpredictable nature of how the discretion in ‘mixed claims’ is being applied.
In ALK & Anor v Chief Constable of Surrey Police [2025], the claimants pursued a claim for false imprisonment with a PI element. The judge at first instance determined that the claim was not ‘in the round’ a PI claim and ordered the claimants to pay 70% of the defendant’s costs. This was, however, overturned on appeal.
Mr Justice Bourne concluded that, where a claim genuinely includes PI, the starting point is that QOCS applies. He considered that all of the factual allegations and the evidence was necessary to determine the PI claims, which were supported by expert evidence and not just ‘tacked on’, and PI damages would have been a substantial proportion of the eventual award. The judge should not have exercised discretion to permit enforcement of costs and the claimants benefitted from full QOCS protection.
However, in Searson & Anor v Chief Constable of Nottingham Constabulary [2025], the claimants advanced claims for false imprisonment and trespass to the person and property. Only the second claimant claimed for PI.
Usefully, the Court confirmed that the QOCS protection afforded to the second claimant did not apply to the whole case and so did not protect the first claimant. The first instance judge determined that the second claimant’s claim was mixed and she should pay 50% of the defendant’s costs. This was upheld on appeal.
Mr Justice Wall concluded that had the pleaded claim for unlawful detention succeeded, they would have received substantial damages, whatever the result of the PI claim, and the majority of the trial concerned the determination of the lawfulness of detention, not an assessment of her injuries.
Both claims were false imprisonment claims which included PI, however, the outcomes were significantly different. The decision in ALK & Anor v Chief Constable of Surrey Police [2025] perfectly demonstrates the difficulty that defendants face when assessing the extent to which costs in a mixed claim might be enforced. The trial judge considered 70% just, whereas Mr Justice Bourne considered there should be no permission to enforce.
Mixed claims: Mixed outcomes
Claims against the police and public authorities typically include mixed claims which are very fact-specific. Enforcement of costs will continue to be unpredictable, making reserving and economic considerations difficult, especially when many factors considered by the court when exercising its wide discretion may be unknown until trial.
It is important that these issues are considered, and strategic and case management decisions are made, not just at the outset of a claim, but on an ongoing basis, if strong arguments as to costs enforcement are to be maintained at the conclusion.
