PI Brief Update

A Vindication (and QOCS Protection) for Vindicatory Claims: Clark v Adams [2024] EWHC 62 (KB) - Amy Lanham Coles, Temple Garden Chambers

22/02/24. This claim raised a question about the application of QOCS where nominal damages of “£1 for vindicatory purposes” was sought. The claim was brought against Mr Gerry Adams (former President of Sinn Fein; First Defendant) and the Provisional Irish Republican Army (PIRA; Second Defendant) for injuries suffered following bombings at the Old Bailey, London Docklands and Arndale Centre Manchester in 1973 and 1996.

The claims were premised on the torts of assault and battery, which are actionable per se, without proof of damage. In early correspondence the Claimants had expressly disavowed claims for general and special damages as well as aggravated and exemplary damages, instead contending “we can confirm that no claim for damages for personal injury is sought beyond the vindicatory sum of £1”.

The Claim Form alleged that each of the Claimants had suffered assault/battery and injury as a result of the respective bombing incidents and thereby sought “nominal vindicatory damages for assault/battery in respect of loss and damage caused as a result of bomb attacks”. The Particulars of Claim alleged assault and battery causing personal injury and loss and damage, in each case providing particulars of injury and referencing pain suffering and loss of amenity.

Issue

The First Defendant raised the application of QOCS, inter alia, as a preliminary issue via an application. He argued that the claims did not enjoy QOCS protection because they did not “include a claim for damages […] for personal injuries” within the meaning of CPR 44.13(1)(a). He sought a declaration to that effect under CPR 3.1(2)(m).

Submissions

The First Defendant submitted that the early correspondence revealed this was a claim for declaratory relief in order to vindicate rights, to be distinguished from a compensatory claim. He also argued that QOCS protection was designed to guard against the mischief of inequality of arms, far removed from the present situation where the individual Defendant was uninsured. He did not contend that the claim was an abuse of process under CPR

44.15(a).

The Claimants submitted that the claims did fall within the ambit of CPR 44.13(1)(a), pointing to the pleadings which set out the injuries suffered by each of them. They argued this was equivalent to a claim in which the Claimant sought a fraction of the quantum to which they were entitled. The appropriate mechanism for dealing with disparity between the amount of the claim and the costs was to ensure the costs were proportionate, not to remove costs protection. They also argued that the Claim could also be amended – by either deleting the phrase “for vindicatory purposes” or increasing the sums claims. It was immaterial that the torts were actionable without proof of damage and QOCS was deliberately intended to capture all personal injury claims not just certain categories of personal injury claim. The only plausible exception here was that of abuse of process which the First Defendant had not pursued.

Judgment

It was noted the expression “damages…for personal injuries” should be given a broad interpretation, “avoiding undue technicality” (para 75 (iii)). The court placed emphasis on the pleaded case, with the early correspondence to be treated with caution (para 75 (i-ii)). The pleaded case expressly referred to injuries on which the claim was based, beyond the causes of action relied upon. Emphasis was accordingly placed on the claim and not the cause of action (para 75 (iv)). The motives of the Claimants and the funding position of the First Defendant were similarly red herrings (para 75 (v-vi)). Accordingly, it was held that “pleadings set out the necessary ingredients of a claim for damages for personal injury within the meaning of the rule; and contain no averments which are inconsistent with such a claim” (para 77). Accordingly, the claim for nominal damages for personal injury did indeed enjoy QOCS protection.

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