Claiming that he had been unlawfully detained, the claimant sought, through the route of judicial review, immediate release from detention, determination of the defendant’s liability for his false imprisonment and resolution as to whether, if false imprisonment was established, damages should be compensatory or nominal. The defendant had detained the claimant under immigration powers for periods totalling seven years and two months. The judge held that the claimant had been unlawfully detained between 13 July and 10 December 2013 and was entitled to more than nominal damages for false imprisonment, to be assessed on a compensatory basis. The claimant failed in his public law claim in relation to accommodation, deportation and removal. An issue arose as to costs. The defendant contended, inter alia, that as the claimant had succeeded on only one issue out of four he was entitled to only 25% of his costs.
On the application—
Held, defendant to pay 60% of the claimant’s costs. There was no rule requiring deduction of a successful party’s costs if he lost on one or more issue, and there were very few cases where one party succeeded on every point. The dangers inherent in trying to construct awards in costs which reflected an often complex litigation matrix were obvious. The claimant had plainly succeeded on one aspect of the private law claim, and on the public law claim he was wholly unsuccessful. The appellate courts had expressed concern at the prospect that those lawyers who practised in publicly funded work, often taking on challenging points on behalf of individuals to whom neither the profession nor the public would be instinctively sympathetic, might not be able to recover remuneration at inter parties rates in cases where they were essentially successful. The real risk was that publicly funded practices would soon be unsustainable and access to justice compromised more widely. That was a factor which could and ought properly to be taken into account. It was not a subversion of the principles of the CPR, rather it was a re-assertion of the principles in CPR r 44.2(2), ultimately therefore a restatement of a workable costs regime. The minute calibration of success and loss, the pursuit of some platonic concept of “perfect justice” could generate a battle that litigants could only lose. That the period of wrongful detention was not as great as contended for by the claimant did not, in the present case, expunge the gravity of the tortious act. That a defendant might be regarded as successful in litigation where such a finding had been made, might strike many as odd. However, the evidence supporting the claim of wrongful detention beyond the five-month period found was weak, and in that respect, by trial, the claimant’s case was overly ambitious. Any litigant who pursued a case in such circumstances would know or be advised that he did so at his own peril, ie at risk to his own award of damages. Having regard to the competing and, inevitably, not necessarily compatible arguments, the defendant should pay the claimant’s costs, discounted by 40% (paras 17, 24, 26, 28–30).
Straker v Tudor Rose [2007] CP Rep 407, CA considered.
Mr Chris Buttler (instructed by Duncan Lewis Solicitors) for the claimant.
Ms Kerry Bretherton QC (instructed by Treasury Solicitor) for the Secretary of State.