Kevin Donoghue Solicitor Advocate represented Edwin Afriyie. Here he explains how Edwin’s case helped establish legal precedent and was referred to in QOCS arguments.
By Kevin Donoghue Solicitor Advocate and director at Donoghue Solicitors
One precedent creates another. They soon accumulate and constitute law. What yesterday was fact, today is doctrine.
-Dedication to the English Nation – The Letters of Junius. (1769-1771)
A High Court ruling issued by Mr. Justice Bourne on 28 July 2025 highlights the importance of legal precedent, especially when considering the thorny issue of Qualified One Way Costs Shifting (QOCS).
The recently decided judgment is ALK & Anor v The Chief Constable of Surrey Police [2025] EWHC 1964 (KB). ALK extensively cited the Court of Appeal case of Afriyie v Commissioner of Police for the City of London [2024] EWCA Civ 126. (I represented Mr. Afriyie from start to finish in his civil action against the police.)
The judgment is noteworthy because it shows how:
- lawyers rely on legal precedents to make arguments; and
- judges use that information to make decisions.
Crucially, it also:
- helps victims of police misconduct understand QOCS; and
- gives clients and their lawyers valuable insight to help manage litigation risk.
What is Qualified One Way Costs Shifting (QOCS)?
Mr. Justice Bourne defined QOCS as:
“automatic costs protection which ensures that claimants with a claim for damages for personal injury, whether they win or lose, do not emerge from the proceedings with an adverse costs liability. The rationale for its introduction was a perceived risk that costs risks would deter injured people from claiming compensation.”
The legal basis for QOCS costs protection is laid out in the Civil Procedure Rules 44.13-44.16. (Click on the link to read the rules.)
Three things to note about QOCS protection is that it:
- is a relatively new area of law. It was introduced as part of “the Jackson reforms” on 1 April 2013;
- only applies in cases with personal injury, in whole or in part. Cases with personal injury and other elements, such as Human Rights or trespass claims, are known as “mixed claims”; and
- is discretionary in mixed claims. Usually, the judge hearing the case decides whether QOCS costs protection applies in mixed claims and, if so, to what extent.
The combination of these factors means that QOCS protection is routinely challenged by defendants when a claimant fails to prove their claim. This is because, if QOCS costs protection is successfully disapplied, defendants can recover some, or all, of their costs from the claimant.
What Was the QOCS Issue in ALK & Anor v The Chief Constable of Surrey Police?
Both claimants in ALK brought civil actions against Surrey Police for compensation. They sought damages for false imprisonment, battery, and trespass.
Unfortunately for the claimants, they failed to prove their claims after a five-day trial before HHJ Judge Simpkiss in January 2024. The police force defendant sought a contribution towards its costs.
Considering this, the court noted that the claims included non-personal injury elements. Accordingly, they were treated as “mixed claims”. The judge chose to disapply full QOCS costs protection, applying the mixed claim exception under CPR rule 44.16. He ordered that the claimants pay 70% of the police’s costs.
The claimants appealed this order on the basis that the judge had erred in law by applying the mixed claim exception. This resulted in an appeal before Mr. Justice Bourne on 2 July 2025.
What Happened at the Appeal Hearing?
Mr. Justice Bourne heard submissions from the parties’ barristers, George Murray (representing ALK and ECN, the claimants/ appellants), and Adam Clemens (representing the defendant/ respondent). Both sides agreed that the:
- claimants brought substantive personal injury claims which were not “tacked on” purely to seek QOCS protection
- claims included non-personal injury elements, so were rightly viewed as mixed claims. This meant that QOCS protection was in the judge’s discretion under CPR rule 44.16
- starting point when considering QOCS is complete costs protection for claims properly characterised as personal injury claims “in the round”.
After that, each side sought to advance their position:
- the claimants/ appellants argued that, even though they pursued mixed claims, they were personal injury claims “in the round”. As such, they were entitled to full QOCS protection despite the discretion to disapply it
- the defendant/ respondent argued that HHJ Judge Simpkiss did not err in law. They agreed with the judge that the claims were not personal injury claims “in the round”, so that his discretion applied and was properly exercised. Following the legal precedent in Jeffreys v Commissioner of Police of the Metropolis [2017] EWHC 1505 (QB), it was appropriate that, without QOCS costs protection, the police were entitled to recover 70% of their costs from the claimants.
Having considered both sides, Mr. Justice Bourne allowed the claimants appeal. He found that HHJ Judge Simpkiss erred in law by exercising the discretion. The claimants were granted complete QOCS costs protection.
Why Edwin Afriyie’s Case is Important to the Wider Community
Courts and lawyers rely on legal precedent. Previously decided cases form the “common law” which, along with Parliament-made law, help establish and maintain our system of justice.
Edwin Afriyie’s case contributes to the canon of common law because of the facts, legal arguments, and judicial findings. While it is vitally important in the niche area of civil actions against the police, it has wider implications for other cases involving mixed claims, such as road accident credit hire claims.
Why Mr Afriyie’s Court of Appeal Ruling Matters
Initially, in 2023, High Court judge Mrs. Justice Hill DBE found that Mr. Afriyie failed to prove his claim against the City of London Police. With my help, he overturned that judgment and succeeded in the Court of Appeal in 2024.
The fact that Edwin’s case was ultimately decided in the Court of Appeal matters. It is the second highest court in England and Wales, below only the Supreme Court. As a result, the Court of Appeal’s decisions bind all lower courts, including all High Courts and County Courts. (I expect that this was one reason why the lawyers in ALK referenced it.)
Because of its national significance, Mr. Afriyie’s case continues to serve two purposes for the legal community and society more broadly. It:
- affirms police officers’ obligations when considering Taser firearm use. This helps police forces and their trainers develop guidelines and set standards. It also helps determine liability in cases involving Tasers. (Read the 2024 Court of Appeal judgment for details.)
- clarifies if, and how, QOCS costs protection applies to mixed claims, especially in cases involving civil actions against the police. This was point was addressed by Mrs. Justice Hill DBE in the High Court following written submissions. (Read her judgment here: Afriyie v Commissioner of Police for the City of London (Re Costs) [2023] EWHC 1974 (KB).)
How Afriyie Helped Clarify QOCS Protection in Mixed Claims
After Mr Afriyie failed to prove his claim in the 2023 High Court trial, Mrs Justice Hill DBE reviewed the police’s position that full QOCS protection should not apply. They argued that, because Mr Afriyie’s claim included non-personal injury elements, including misfeasance in public office, aggravated, and exemplary damages, they were entitled to 25% of their costs.
The Judge dismissed those claims, correctly finding that Mr Afriyie’s claim was a personal injury claim “in the round” and that there were no “exceptional features” of the non-personal injury claims to justify disapplying full QOCS protection.
It is important to note that the police did not appeal Mrs Justice Hill DBE’s finding that QOCS protection applied in full in Mr Afriyie’s mixed claim. Consequently, despite not coming from the Court of Appeal, her judgment and reasoning carry weight.
The Basis of the “In the Round” Precedent
Considering personal injury claims “in the round,” while not a statutory provision, is helpful because the idea is based in legal precedent. It was first advanced in the previously decided case of Brown v Commissioner of Police of the Metropolis & Anor [2019] EWCA Civ 1724. In that judgment, Coulson LJ said:
57 But in such proceedings, the fact that there is a claim for damages in respect of personal injury, and a claim for damage to property, does not mean that the QOCS regime suddenly becomes irrelevant. On the contrary, I consider that, when dealing with costs at the conclusion of such a case, the fact that QOCS protection would have been available for the personal injury claim will be the starting point, and possibly the finishing point too, of any exercise of the judge’s discretion on costs. If (unlike the present case) 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 (such as gross exaggeration of the alternative car hire claim, or something similar), I would expect the judge deciding costs to endeavour to achieve a ‘cost 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.”
(My emphasis in bold here and throughout.)
How the Lawyers in ALK Used Mr Afriyie’s Case
As you can see from this extract from the judgment, in ALK, a large part of the court’s time was taken up with submissions from both sides relating to Edwin Afriyie’s case. It was highly relevant to the:
- circumstances of the ALK case (a civil action against the police involving personal injury and other claims)
- arguments on costs (whether QOCS protection applies to mixed claims and, if so, to what extent.
Remember in the following exchange that Mr Clemens represented the police, and Mr Murray the claimants:
Mr Clemens emphasized that Afriyie, unlike this case, arose from physical acts i.e. tasering which caused the claimant to fall and suffer injury, and handcuffing. All of the issues about motivation and misfeasance were concerned with those acts. There was a live issue at trial about the extent of any injury and various experts were relied on by the claimant to deal with personal injury issues.
Finally Mr Clemens submitted that the QOCS regime was not intended to capture police cases of this kind, where claimants may elect a trial by jury which is liable to increase costs.
In answer to a question from me, Mr Clemens said that it was not contended that this was a case where a spurious personal injury claim was “tacked on” in an attempt to obtain costs protection.
Mr Murray responded on those last two points, contending that Afriyie was not materially different because in a personal injury claim there is no material distinction between physical and psychiatric harm, and pointing out that police cases could have been excluded from the QOCS regime but were not.
How Mr Justice Bourne Viewed the Afriyie Case
Mr Justice Bourne summarised Mr Afriyie’s case, and arguments about Mrs Justice Hill’s analysis of the QOCS regime, succinctly:
In Afriyie v The Commissioner of Police of the Metropolis [2023] 1974 (KB) (“Afriyie”), police officers had used a taser on a claimant and handcuffed him. He claimed, unsuccessfully, for assault and battery and misfeasance in public office, seeking basic (i.e. non-PI) damages, damages for personal injury, special damages, aggravated damages and exemplary damages. Finding that this too was “in the round” a PI claim, Hill J ruled that QOCS protection should be applied with no deduction. She noted in particular that the grounds for the aggravated and exemplary damages claims arose from the same actions of the police which gave rise to the PI claim, and in any event the issues about the behaviour of the police, including their truthfulness, had to be considered in order to decide primary liability.
In his Discussion, Mr Justice Bourne found that Afriyie was helpful because:
Similarly, this case had in common with Afriyie the feature that claims for aggravated and exemplary damages depended on the same facts as the PI claim. But Afriyie was more obviously a PI claim because the “act which was at the heart of the case” (Hill J at [28] was what caused the alleged injury whilst subsequent conduct was more the foundation of the claims for aggravated and exemplary damages.
Consequently,
In my judgment, the fact that – as the Defendant rightly agrees – this is not a case of “the … ‘tacking on’ of a claim for personal injury damages (regardless of the strength or weakness of the claim itself) … just to hide behind the QOCS protection” (Brown at [58]) is very important. These claims included an entirely viable head of loss consisting of personal injury which is not at all unusual in a claim for the torts which were alleged in this case, and which was supported by prima facie credible expert evidence. And, the personal injury head of loss would, or could be expected to, account for a substantial proportion of any damages that would be awarded if the claims succeeded.
In those circumstances, I consider that it was an error to apply the discretion as to costs protection on the basis that this was not, in the round, a personal injury case. That therefore undermined the exercise of discretion by the Judge.
A Contrasting View of QOCS Costs Protection
By coincidence, only three days before the judgment in ALK, another judge found against a co-Claimant in Searson & Anor v Chief Constable of Nottingham Constabulary [2025] EWHC 1982 (KB).
There, the judge found that when two co-Claimants bring actions against the police, QOCS costs protection does not automatically pass to both claimants.
In that case, the court ordered the first Claimant to pay 100% of the police’s costs; the second Claimant had to pay 50% because they had a “mixed” claim. (It should be noted that neither side referred to Afriyie in their submissions.)
What the Recent Judgments Say About QOCS
In Mr Afriyie’s case, the City of London Police (somewhat desperately, one may say) also sought to disapply QOCS protection by arguing that Mr Afriyie was “fundamentally dishonest”. Mrs Justice Hill DBE dismissed this out of hand and gave clear, and unarguable, reasoning in her judgment when she found that QOCS costs protection applied in Edwin’s mixed claim. Sensibly, the police did not appeal this finding.
And yet, the two recent QOCS cases of ALK and Searson remind us that all court decisions depend on the circumstances of each case, and the views of the judge hearing them.
I expect that the police will continue to make QOCS arguments in cases where claimants fail to prove their mixed claims. There is a lot at stake. Costs in civil actions against the police often exceed £100,000 if claims go to trial. Unsurprisingly, the police seek to recover some, or all, of those fees. And, unlike individual claimants, the police are in a strong position to do so. After all, they have dedicated legal departments and virtually unlimited budgets courtesy of the taxpayer.
This inequality of arms means that, until the courts and/or government issue definitive guidance, claimants and their lawyers must be prepared for spurious QOCS litigation in civil actions against the police.
Why Legal Precedents Matter
Taking on the police is not for the faint-hearted. Claimants know that they are challenging the State, the most powerful institution in the country. (The police are an arm of the State with all the power and influence that affords.)
They also know that judicial and public sympathy often leans towards police officers, who are portrayed in the media and by their representatives as doing the best that they can in difficult circumstances.
And, as described above, the police have the deepest pockets of any party to court proceedings. This enables them to hire top quality lawyers. For example, in Edwin Afriyie’s case, the City of London Police used taxpayer money to appeal using two, highly paid, barristers to prepare their arguments, one of whom was former government Minister Lord Faulks, KC.
Lastly, the police, as an institution, have time on their side. Edwin Afriyie’s case took more than six years to resolve. His determination to see the case through meant that, in the end, he got the justice and compensation he rightfully deserved.
And, by taking matters as far as he could, Ed helped create legal precedent and new law which benefits us all. Relying on his case helped the claimants in ALK secure full QOCS costs protection. No doubt others will do the same.
For this, and for all the other brave claimants who bring genuine civil actions against the police, we should be grateful.
Kevin Donoghue is a Solicitor Advocate with over 25 years’ experience in civil actions the police.
