Claims for Injury to Feelings do not benefit from QOCS protection

At a hearing in front of HHJ Melissa Clarke at Oxford CC, Huw Davies successfully obtained declarations on behalf of an Oxford College that damages for injury to feelings are not damages for personal injury for the purposes of CPR 44.13. Consequently, the Claimant’s claims brought under the Equality Act 2010 did not benefit from QOCS protection.

A former student of an Oxford college brought proceedings for damages arising for alleged acts of discrimination by the College, making claims for both declaratory relief and damages for injuries to feelings. At a preliminary hearing the College sought declarations from the Court that a claim for injuries to feelings was distinct from a claim for personal injury, and that, absent of a claim for personal injury, the claimant did not have the benefit of QOCS protection.

The Court held that:

• Damages for personal injury and damages for injury to feelings are distinct claims. A review of the case law supports this position. Passages of particular assistance include: Sherrif v Klyne Tugs (Lowestoft) Ltd [1999] 1 ICR 1170, para 11; Vento v Chief Constable of Yorkshire [2003] ICR 318 para 63, 65; Simmons v Castle [2012] EWCA Civ 1288, para 20. The wording of CPR 2.3, 26.6(2) and 44.13 also support this analysis, as does the wording of the JCB guidelines Chapter 13 in relation to awards for psychiatric and psychological damage. In addition, assistance on the point can be gleaned from Lord Justice Jackson’s report at paragraphs 5.3 and 5.6 of Chapter 10, in which damages for personal injury and damages for breach of a statutory tort are clearly distinguished.
• Claims for injury to feelings do not by themselves have QOCS protection by reason of CPR 44.13, although a claim brought under the Equality Act 2010 may be caught by QOCS if it also includes a claim for personal injury.
• The Claimant’s argument that it was not proportionate to obtain a medical report to make a separate claim for personal injury, or to obtain evidence of the same failed: Claimants must evidence their claim. In any event the medical evidence adduced in support of the Claimant’s contention of personal injury did not establish such injury;
• The Claimant’s arguments that the court should purposively interpret CPR 44.13 as encompassing claims for injury to feelings, so that the principles of effectiveness and equivalence were fulfilled in order to comply with UK’s obligations under EU law failed. Firstly, in arguing the principle of equivalence, the Claimant was attempting to equate two principles (injury to feelings and personal injury) that were not equivalent. Secondly, the argument that the principle of effectiveness required the Claimant’s injury to feelings claim to be covered by QOCS was not strong: the fact that the Claimant may face a costs bill if unsuccessful is a normal factor of litigation which Claimants must take into account when assessing the risks of litigation.

Huw Davies is part of the Personal Injury Team.

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