PI Brief Update

QOCS in mixed claims: Sex, lies and a £100,000 costs bill - Michael Brooks Reid, Temple Garden Chambers

21/08/25. In Samrai and Ors v Rajunder Kalia [2024] EWHC 3143 (KB), seven claimants brought claims against the defendant, a religious leader, alleging to have been financially and sexually exploited by him. Four of the claims included claims for both personal injury (“PI”) and non-PI losses (i.e. “mixed claims”).

Each of the claims was either dismissed or struck out.

The Defendant’s costs bill had run to some £2 million and the matter came back to the Judge ([2025] EWHC 1449 (KB)) to deal with, inter alia, to what extent the First to Fourth Claimants (“the Mixed Claim Claimants”) were entitled to Qualified One-Way Costs Shifting (“QOCS”) protection.

The Law

The Judge set out the relevant QOCS provisions, namely CPR 44.13 and the exception under CPR 44.16(2), which provides:

“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 … 

(b) a claim is made for the benefit of the claimant other than a claim to which this section applies.”

The Judge considered authorities set out in the CPR 44.16(2) White Book commentary. In Brown v Commissioner of Police for the Metropolis [2019] EWCA Civ 1724, it was held that if proceedings can fairly be described “in the round as a PI case” then, unless there are exceptional features (such as a “grossly exaggerated hire claim”), the court will usually exercise its discretion to apply QOCS to the whole claim. In Siddiqui v University of Oxford [2018] EWHC 3536 (QB) the court applied a broad-brush approach to separating PI and non-PI elements of the claim, ordering the claimant to pay 25% of the defendant’s costs.

The Arguments

The Defendant argued that the Court should apply the broad-brush approach endorsed in Siddiqui and order that the Mixed Claim Claimants pay 60% of the Defendant’s costs. In support, the Defendant noted that as little as 5% of the damages claimed by the Mixed Claim Claimants arose from the PI elements.

The Claimants, on the other hand, argued that this had been, “in the round”, a PI claim. Sexual exploitation was at the heart of the case and occupied the majority of the judgment, and the other claims were ancillary. Applying Brown, QOCS protection should apply to the whole claim.

Alternatively, the Court should exercise its discretion under CPR 44.16(2) to apply QOCS to the whole claim for reasons including:

• The Defendant’s false denials which affected how the trial was run.
• The disparity in status and financial positions of the parties.
• The psychological consequences that a costs order would entail for the First Claimant who had mental health difficulties.
• A public policy interest in not deterring individuals from making allegations of misconduct in the religious context.
• The fact that a large and substantial part of the reason for the failure of the claims related to the negligence of the Claimants’ previous legal team.

The Decision

The Judge found that the mixed claims could not be described, in the round, as PI claims. Although PI was an important aspect and took up a large proportion of the trial, there was also significant time taken up on non-PI aspects.

The fact that the Fifth to Seventh Claimants brought claims on broadly the same basis but without any element of PI showed that the PI aspects and non-PI aspects could clearly be distinguished.

Further, the Judge declined to exercise his discretion to apply QOCS to the whole claim, rejecting each of the arguments put forward on behalf of the Mixed Claim Claimants.

Noting that the most expensive part of litigation is the trial itself, which was weighted heavily in favour of the PI claim, and applying a broad-brush approach, the Judge ordered the Mixed Claim Claimants to pay 40% of the Defendant’s costs.

Comment

The most important consideration will always be whether the claim can be fairly described, in the round, as a PI claim. If not, the Court will take a broad-brush analysis, particularly bearing in mind the costs devoted to the non-PI elements.

Claimants will note that despite the Court having discretion, the Judge was unmoved by arguments on public policy, mental health and financial disparity between the parties and the Mixed Claim Claimants were footed with a £100,000 costs bill each.

Claimants should be robustly advised of costs risks in mixed claims, and may do well to take out ATE insurance. Representatives should consider how best to plead and present a claim to amplify the PI elements and minimise the risk of a large adverse costs order.

Defendants will take comfort in the fact that the Court declined to exercise its discretion to apply QOCS to the whole claim, notwithstanding some potentially attractive arguments raised by the Claimants.

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