Andy Burnham’s victory in the Makerfield by- election has set him on seemingly inevitable course for the biggest constituency of all – the UK, as our next Prime Minister, and the tame surrender of Sir Keir Starmer (perhaps he will return to his former field of practice in civil liberties actions – watch this space) means that he is likely to assume the ultimate leadership mantle within weeks.
Our new PM will have a lot on his agenda, and don’t worry, I’m not going to turn this into a political blog-space (we’ve got enough of those), but I want to make a serious point about something that really matters to the clients I represent and which has been overlooked by successive governments since 2013. It is about the exposure of litigants in Police claims to the risk of having to pay the Defendant’s legal bill if they lose, and what can be done to minimise or even eliminate those risks, allowing meritorious claims to be fought without the worry of financial catastrophe for the Claimant.
The Problem: The Financial Gamble of Litigation
In 2018 I wrote a blog post about access to justice in civil claims, in particular, the introduction of the “Qualified One Way Costs Shifting” rules or “QOCS”, set out at 44.13 – 17 of the Civil Procedure Rules.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which paved the way for QOCS, effectively abolished the rights of Claimants in civil litigation to take out “After the Event” legal expense insurance products to protect them from having to pay the swingeing legal costs which Defendants are entitled to if the claim fails (on the principle of the loser in litigation having to pay the victor’s costs). I say effectively abolished, because it was still legal for claimants to take out such insurance products – it was just that their right to recover the cost of that insurance from the Defendant if they, the Claimant, won was removed, leaving litigants with the prospect of paying more for an insurance premium than their claim was worth; insurance premiums in my specialist area of claims against the Police could easily amount to £40,000 if the case went all the way to trial. Clearly that was no longer an economically viable model.
Recognising that this change might significantly harm access to justice i.e because people would be scared away from pursuing meritorious claims because of the financial costs of either an irrecoverable premium, or the Defendant’s legal bill if they didn’t have insurance cover and ended up losing the case, the government introduced a special allowance for claimants in personal injury matters and that was Qualified One Way Costs Shifting. In essence, QOCS means that a losing Claimant doesn’t have to pay a victorious Defendant’s costs, unless the claim is found to have been “fundamentally dishonest”.
The key problem in my area of law, however, was that the government, in its wisdom, restricted QOCS to personal injury claims – excluding claims for hugely significant civil liberty breaches, such as False Imprisonment, Malicious Prosecution, Trespass to Land and breaches of the Human Rights Act 1998. A cynic might note that whereas the paying party in the majority of personal injury claims are private insurance companies, who now had to swallow the costs of unsuccessful claims against them, the government departments and agents of the state who are the usual Defendants in civil liberties claims – including, of course, the Police – were allowed to retain the ability to pursue unsuccessful litigants for their costs, often amounting to tens of thousands of pounds. This is a significant financial “truncheon” which lawyers representing our Chief Constables are more than happy to brandish in order to ‘scare’ off potential claimants.
As I highlighted in my previous blog post, the injustice of a situation in which those whose fundamental civil liberties have been violated face greater financial hurdles to accessing justice than do those who’ve been involved in a minor accident, was stark, and did not go unremarked upon. Indeed, a Civil Justice Council report highlighted this issue in March 2016, in strident terms:
“There are strong, if not compelling, arguments of principle –based on access to justice and on the asymmetry of the relationship between the parties – weighing in favour of extending the scope of QOCS protection (or something very similar) to claims against the police…Principled arguments for not doing so do not appear to have been made out.”
And yet, 10 years and almost sixPrime Ministers later, nothing has changed and the QOCS rules remain unaltered.
The Solution: Playing your Cards Rights
In reality, Britain’s new Prime Minister is going to have enough unpalatable problems home and abroad to deal with over the remaining duration of this parliament, to get around to blowing the cobwebs off that Civil Justice Council recommendation. But that doesn’t mean that those contemplating the financial risks of a claim against the Police need to despair; there are a number of ways to obviate the risk which I, as a specialist in actions against the Police (and State authorities generally) can guide you to and through.
The first is the continued availability of legal aid for claims against the Police, the Ministry of Justice and other government departments and agencies. My firm, DPP Law, is one of those niche firms with a franchise in civil legal aid and we can offer the legal aid representation which many other lawyers cannot. Legal Aid is subject to means testing, but if you have a meritorious claim and you meet the financial criteria, I can secure a public funding certificate for you from the Legal Aid Agency. Not only does this cover your own legal costs (meaning you would not have to pay the “success fee” of up to 25% from your damages, which is generally charged under a “No Win, No Fee” arrangement) it also crucially means that you are protected from having to pay the Defendant’s costs if you lose. The best shield for any claimant is to have a legal aid certificate covering you all the way to trial; not everyone can forge that shield for you, but with the right material, I can.
The second is the understanding and application of case law, which has continued to develop over the last ten years, even if the underlying legislation has not changed; that is, of course, the essential hallmark of the British legal system at its best: the combination of statute law (made by politicians) and case law (made by judges) – flexibly complimenting and enhancing one another and thereby the rights of the citizen.
It is possible to bring claims against the Police within the protection of QOCS if the case is presented and evidenced in the right way. For example, if you have a claim for wrongful arrest which involves the use of force and/or psychological suffering being inflicted upon you – these are personal injuries and if they represent a significant enough proportion of the damages being sought and/or are shown to be sufficiently intertwined with other aspects of the claim (such as damages for enduring loss of liberty, or trespass to your land and property) then the right legal argument can win you full QOCS protection.
The question of how the Court should apply QOCS to a “mixed claim” involving not just personal injury but other remedies and classes of damage, was first substantially addressed by the Court of Appeal in the 2019 case of Brown v The Commissioner of Police of the Metropolis [2019] EWCA Civ 1724.
In that case, the Court of Appeal stated, in essence, that where there is a ‘mixed’ claim for both personal injury and non- personal injury damages and remedies, the Judge dealing with the case must exercise his discretion as to what extent it is fair to allow the Claimant (if he loses the claim) QOCS protection, in full or part.
The Court of Appeal stated that:
“the fact that QOCS protection would have been available for the personal injury element of the claim will be the starting point, and possibly the finishing point too, of any exercise of the judge’s discretion on costs. If the proceedings can fairly be described in the round as a personal injury case then, unless there are exceptional features of the non-personal injury claims…I would expect the Judge deciding costs to endeavour to achieve a ‘costs neutral’ result through the exercise of discretion. In this way, whilst it will obviously be a matter for the judge on the facts of the individual case, I consider it likely that, in most mixed claims of the type that I have described, QOCS protection will – in one way or another – continue to apply.”
Since the Brown case, the High Court has awarded 100% QOCS costs protection to claimants against the Police in a number of high- profile cases.
For example, in the case of Afriyie v The Commissioner of Police of the Metropolis [2023] EWHC 1632 (KB) the Claimant was claiming not only basic damages for personal injury but also misfeasance in public office and aggravated and exemplary damages. The Judge granted Mr Afriyie 100% QOCS protection as the case was “in the round” a personal injury claim and the grounds for aggravated and exemplary damages arose from the same activity of the Police as gave rise to the personal injury claim.
Likewise, in the case of ALK and Another against The Chief Constable of Surrey Police [2025] EWHC 1964 (KB) two Claimants who brought “mixed claims” against the Police for both unlawful arrest and the psychiatric injury caused by those arrests, were found to be entitled to 100% costs protection.
In Summary: Ensuring Access to Justice
Although reform of the QOCS rules to extend costs protection to all claims against the Police whether they involve personal injury or not (no ifs, no buts) is long overdue, and is clearly in the interests of justice, I do not expect our new Prime Minister to have it anywhere near the top of his agenda, if, indeed, it is even in his contemplation. But as I have hopefully outlined above, there is no need for despair as there are a number of routes through which justice can be accessed with no or minimal costs risks for Claimants.
I am here to put my expertise at the disposal of those with meritorious claims, and help shield them from adverse costs through the application of the Legal Aid system and/or my knowledge of the caselaw in regards to this crucial issue.
The PM’s constituency is the country; and mine is the cohort of its citizens who have been the victims of Police misconduct and abuse of power. Whatever our politicians do, I will strive to do what I can as a lawyer, to spread access to justice far and wide, through education, advice and advocacy.
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Contact the Expert Police Misconduct Solicitor
Iain Gould is a solicitor specialising in complaints, claims and civil actions against the Police. With over 30 years of experience and a national reputation, he has successfully sued all 43 police forces in England and Wales challenging abuse of power and securing rightful compensation
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