England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/04/2016

Mr Justice Hayden :

1. On the 25^th June 2015 I handed down judgment in an application for Judicial Review in this case. I also gave various consequential directions to be addressed at a subsequent hearing. For a variety of reasons, which I need not burden this judgment with, that hearing has been greatly delayed. However, the matter returns to me to consider a number of issues:

i) Whether the Court should compel the disclosure of the terms of settlement relating to an earlier application and appended to an order of 21^st November 2011 in proceedings CO/7878/2010;

ii) Directions relating to quantification of damages;

iii) Costs;

iv) Any application for permission to appeal.

2. On the 29^th February 2016, in a short ex tempore judgment, I refused cross applications for permission to appeal, neither of which established the criteria for grant of permission at first instance.
3. This judgment requires to be read in conjunction with my earlier judgment Neutral Citation Number [2015] EWHC 1831 (Admin). In the course of that judgment I accepted the Claimant's submission that the extraordinary history of detention in this case required careful scrutiny and imposed a heavy burden of justification on the Defendant. At paragraph [5] I summarised the history of detention which requires to be repeated here:

"A disturbing feature of this case is that the Home Secretary has detained the Claimant under immigration powers for the following periods:

i) 8 July 2006 - 14 June 2011 (when the Claimant was released by order of the High Court)

ii) 9 June – 7 August 2012

iii) November - 8 December 2012

iv) 31 May 2013 - present

These periods total seven years and two months. Such a time span is a disturbing period for the executive to detain an individual under purely administrative powers. It would appear to be one of the longest aggregate periods that HM Government has ever detained an individual for in such circumstances. Though the period of detention was longer in the case of: Mustafa Abdi (formerly known as MA (Somalia) v Secretary of State for the Home Department [2014] EWHC 2641 (Admin), the Claimant in that case posed a grave risk to the public, including to children. The Claimant here can not be categorised in that way, nor does the level of risk he poses to the public come anywhere close to that identified in Abdi (supra)."

4. At paragraph [100] I summarised my findings thus:

"In conclusion, I reject the Grounds of Claim, save for and limited to my finding that the Claimant was detained between the 13^th July 2013 and the 10^th December 2013 when there was, at that stage, no realistic prospect of deportation. His detention was for this period, therefore, unlawful."

Confidentiality

5. The Tomlin Order, relating to the period of detention between the 8^th July 2006 and the 10^th June 2011 (i.e. predating the litigation with which I was concerned) provided:

The Schedule to the Tomlin Order provided as follows:

"1. The Defendant do pay to the Claimant in full and final settlement of the claim for the period of unlawful detention from 8 July 2006 to 10 June 2011 the total sum of £X. The said sum to be paid by the Defendant to the Claimant's solicitors within 28 days of the date hereof

…

4. The resolution of this claim as set out in above is and shall remain confidential as between the parties and their legal and professional advisors, unless otherwise required by law or under compulsion of a court of competent jurisdiction or for the purpose of detailed assessment proceedings."

6. I have redacted the actual figure for the settlement above, in accordance within the terms of the order. In my earlier Judgment I did not identify the sum involved. The SSHD now contends that the confidentiality should be set aside. Ms. Bretherton QC appearing on behalf of the Secretary of State submits:

"The order provided for confidentiality to be between the parties and their advisors. This exception to the general confidentiality provision enabled the Defendant's officers to comply with her statutory obligation to assess whether the Claimant was "destitute" for the purpose of provision of s4 accommodation. Accordingly, the key issue is whether the confidentiality should be maintained in the judgment.

The wording of paragraph 4 of the terms of settlement plainly enables the Court to waive the confidentiality; there can be no doubt that the Administrative Court is a "court of competent jurisdiction". The Defendant contends that the Court should exercise its power to do so for the reasons that follow."

7. There are four arguments advanced to support that course. Firstly, it is submitted that it is 'entirely impossible' to understand, in the absence of this detail, why the Defendant was not satisfied that the Claimant was destitute. Secondly, Ms. Bretherton suggests that there is no longer any sensible or compelling reason for the confidentiality to continue. Thirdly, the judgment was apparently published on BAILII for a brief period with the sum accidently un-redacted. Accordingly, she argues that anyone interested in this field of law is likely to know the sum of damages awarded. From this it is extrapolated that the 'genie is out of the bottle' and the confidentiality now meaningless. Finally, Ms. Bretherton argues that the specific amount has relevance to the computation of damages which, on her case, should be summarily assessed at this hearing.
8. Mr Buttler responds that the Defendant made a similar, though not identical, argument at the hearing in June 2015 but abandoned it. Additionally, it is submitted that both parties remain contractually bound not to disclose the sum and that the Court has no jurisdiction to vary the terms of that agreement, see: Community Care North East v Durham County Council [2012] 1 WLR 338. By contrast to the reasoning of Ms. Bretherton, Mr Buttler contends that my Judgment is 'perfectly comprehensible without reference to the amount paid'.
9. In relation to the question of the general public interest in transparency in the dealings of the Executive, Mr Buttler says this does not, on the facts of this particular case or indeed more generally, strike at the essence of a confidential settlement. Indeed, the general principle of open justice carries little weight, it is argued, when parties have agreed upon a schedule within the framework of a Tomlin Order. Such orders are apposite both where terms are agreed without admission of liability and where, consequentially, both parties agree that the terms in the Schedule (i.e. not within the order itself) will remain confidential. There are, of course, plainly powerful public interest considerations underpinning such orders. Preserving confidentiality may, on occasions, be an effective mechanism for promoting agreement and compromise, which has the beneficial effect of avoiding expensive and sometimes corrosive litigation. To undermine such agreements retrospectively would act as a powerful discouragement to parties to compromise litigation.
10. Having reread the judgment I am satisfied that it's logical coherence does not require disclosure of the specific amount of damages paid. Indeed, with respect to Ms. Bretherton, if such information was crucial to the comprehensibility of the reasoning it must surely have been foreseeable during the course of submissions in June 2015. It is not entirely easy to see therefore why the point was abandoned. Having come to this conclusion the only argument that, logically, remains for the SSHD is that of the public interest in transparent scrutiny of the Executive. I am satisfied that whilst that is an important principle, as I hope my earlier judgment in this case illustrates, it requires to be balanced against the competing interest in encouraging settlement of litigation. It is axiomatic that the effective administration of the Executive will, from time to time, require it to have the opportunity, like any other party to litigation, to enter into terms of confidential settlement. There must always be powerful reasons to set such agreements aside, I am satisfied that they do not arise here.

Damages

11. The Defendant contends that the scope and ambit of this case renders it far more sensible and cost effective summarily to assess damages rather than to proceed with the laborious exercise of directing a future assessment. The argument is predicated on my identifying the earlier rate of damages and assessing quantum on the appropriate multiplier at the same rate.
12. I approach my evaluation of damages by firstly evaluating the nature and extent of the unlawfulness as found. It is important here, starting from basic principles, to emphasise that the Secretary of State's power of detention is administrative only. As such, authority to detain is circumscribed by the essential requirement that there be some prospect of achieving deportation see: A (Somalia) v SSHD [2007] EWCA Civ 804. As I highlighted in the judgment (see para. 77) this is a fundamental facet of respect for liberty and personal autonomy, rooted in Magna Carta. The periods of detention scrutinised here require logically, legally and indeed morally to be evaluated in the context of the entire history of the case, going back to July 2006. A second period of unlawful detention, as I found there to have been, aggravates, in my judgement, the earlier unlawfulness. The assumption that the award for damages should be calculated on an identical basis to the earlier calculation is, to my mind, misconceived. What requires to be factored in to the calculation is the likely impact on the Claimant of a yet further period of unlawful detention, authorised by the State, in the context of his having been previously detained for such an alarmingly protracted period of time. Further, the fact that the unlawfulness has arisen in circumstances which are not sufficiently heedful of the history of the case is also relevant i.e the nature of the breach as well as its impact on the Claimant.
13. This said, I entirely agree with Ms. Bretherton that this is a case which points strongly to the need for summary assessment: the question of damages covers a limited period of time; the extensive history of the case has been rehearsed in detail; the Claimant has now been deported and the litigation has been protracted. I can see no convincing argument as to why I should take any other course to that suggested by the Defendant. Although this was not as Mr Buttler puts it 'on the agenda for this hearing' it was certainly foreshadowed in earlier exchanges with counsel. Nor is the issue of any great complexity. There must surely come a point where the responsibility to the public purse must prevail. There is no magic formula for the calculation of damages and a wide ambit of discretion is permitted. Having regard to all the circumstances and to the authorities presented to me in MacDonald's Immigration Law and Practice, 9^th Edition, para 18.63, I consider that the appropriate sum is £3,750.

Costs

14. The starting point in assessing costs is CPR 44.2(2) which provides:

"(2) If the court decides to make an order about costs –"

(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b) the court may make a different order."

15. Guidance within the rules as to the matters to be taken into account in determining costs is found at CPR 44.2(4):

"(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –

(a) the conduct of all the parties;

(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

(c) any admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.

16. In conjunction with 44.2(5):

(5) The conduct of the parties includes –

(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;

(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and

(d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim."

17. As is clear from the above, CPR 44.2(4) contains the presumption, which is rebuttable, that the unsuccessful party pays the costs of the successful party, encapsulated in the phrase 'costs follow the event'. Both parties have referred me to a number of helpful authorities on the approach to be taken to 'between the parties' costs. In Straker v Tudor Rose (a firm) [2007] EWCA Civ 368 Waller LJ provided helpful guidance:

11. How then would the rules suggest one should approach a case such as this? The court must first decide whether it is case where it should make an order as to costs, and have at the forefront of its mind that the general rule is that the unsuccessful party will pay the costs of the successful party. In deciding what order to make it must take into account all the circumstances including (a) the parties' conduct, (b) whether a party has succeeded on part even if not the whole, and (c) any payment into court.

12. Having regard to the general rule, the first task must be to decide who is the successful party. The court should then apply the general rule unless there are circumstances which lead to a different result. The circumstances which may lead to a different result include (a) a failure to follow a pre-action protocol; (b) whether a party has unreasonably pursued or contested an allegation or an issue; (c) the manner in which someone has pursued an allegation or an issue; and (d) whether a successful party has exaggerated his claim in whole or in part.

18. Waller LJ also specifically aligned himself with the formulation settled upon by Longmore LJ:

"13. Where, particularly in a commercial context, the claim is for money, in deciding who is the successful party, I agree with Longmore LJ when he said in Barnes v Time Talk (UK) Ltd. [2003] EWCA Civ 402 para 28 that "the most important thing is to identify the party who is to pay money to the other"*. In considering whether factors militate against the general rule applying, clear findings are necessary of factors which led to a disapplication of the general rule, e.g. if it is to be said that a successful party "unreasonably" pursued an allegation so as to deprive that party of what would normally be his order for costs, there must be a clear finding of which allegation was unreasonably pursued."

* my emphasis

19. Mr Buttler recognises that he lost significant arguments within the claim. He contends however that this action was predominantly a private law claim for damages, certainly, he says, that was by far the most time consuming, both in terms of preparation and advocacy. From this he goes on to submit that the bench mark of success in a claim for money, as this is, is whether the Defendant will, in consequence of the judgment, be writing a significant cheque (see para 13 above).
20. Lightman J (as he then was) in Bank of Credit and Commerce International SA v Ali (No.3) [1999] NLJ 1734 Vol. 149 observed:

"For the purposes of the CPR success is not a technical term but a result in real life and the question as to who has succeeded is a matter for the exercise of common sense"

21. I note that the editors of Cook on Costs [2016] suggest that this formulation simply puts into words that which all practitioners know, i.e. that a look at the reactions of the parties, in court, when judgment is given is the surest indicator of success and failure. Of course this only answers the first question the Court faces and engages the general rule. The Court must then consider the factors in CPR. 44.2 (4) and (5) (see para 14 and 15 above).
22. Ms. Bretherton counters that in relation to the overall claim there were 4 issues before the Court. The Claimant, she points out, failed in relation to 3 of the 4 issues. In her Skeleton Argument she states:

"The Claimant failed on the first issue which related to s4 accommodation. As costs should follow the event in accordance with the normal principles it is submitted that the order should be that the Claimant pay the Defendant's costs of Issue 1.

The Claimant succeeded in relation to issue two and so it is accepted that the Defendant should pay his costs in relation to that issue from 18 April 2015, subject to matters of set off set out below and subject to this issue based approach to costs being advanced.

The Claimant failed on the third issue which related to the deportation order. The Defendant is entitled to her costs in relation to this issue.

The Claimant failed on the fourth issue and has now been removed. The Defendant is entitled to her costs in relation to this issue."

23. Crafting those propositions into a workable solution, it is submitted that the most logical way forward is to 'set off' the costs owed to the SSHD against both the awarded damages and the costs it is contended are due to the Claimant. Ms. Bretherton concludes that on this analysis no payment is due to the Claimant or his solicitors by way of costs. The balance, adopting what she describes as a 'broad brush' approach, should result in liability of 50% due to the Defendant. This she arrives at on the basis that the Claimant having succeeded on only one issue out of four is entitled to only 25% of his costs. Alternatively, it is suggested that such also reflects the award of damages for a period of detention which was significantly reduced from the ambition of the claim.
24. There is of course no rule requiring deduction of a successful party's cost if he loses on one or more issue. Indeed, there are very few cases where one party succeeds on every point. The dangers inherent in trying to construct awards in costs which reflect this often complex litigation matrix are obvious and encapsulated by Jackson LJ in Fox v Foundation Piling Limited [2011] CP Rep 41, at para 62:

"There has been a growing and unwelcome tendency by first instance courts and, dare I say it, this court as well to depart from the starting point set out in rule 44.3 (2) (a) too far and too often. Such an approach may strive for perfect justice in the individual case, but at huge additional cost to the parties and at huge costs to other litigants because of the uncertainty which such an approach generates. This unwelcome trend now manifests itself in a (a) numerous first instance hearings in which the only issue is costs and (b) a swarm of appeals to the Court of Appeal about costs, of which this case is an example."

25. Inevitably, in any litigation, not all claims are advanced with the same force or invested with the same weight as others. Some aspects of a claim will be regarded as very important, others will be merely makeweight or peripheral. Moreover, litigation runs its own unpredictable course and an issue or claim may resolve in a way that the litigants had not anticipated. Mr Buttler points, for example, to the Defendant's success on the accommodation issue (para 59 of my judgment) which resolved on 'a point suggested by the Judge' which was 'enthusiastically' adopted. How, one wonders, should that scenario redound in costs.
26. The Claimant has plainly succeeded on one aspect of the private law claim. On the public law claim the Claimant was wholly unsuccessful. It is this feature that causes Ms. Bretherton to say that, in litigation terms, it is the Defendant who is the real victor. That has superficial attraction, however, it is also right to say that the claim for release, predicated on the second Hardial Singh limit, was effectively abandoned at the start of the trial. The second claim, rooted in the lawfulness of the Deportation Order, was heavily dependent on the judgment in R (Pryor) v SSHD [2013] EWHC 2853 (Admin). The Defendant sought initially to rely on the reasoning in that case but later altered her position. Mr Buttler regards this as his victory. If he is correct, I am bound to say, it strikes me as pyrrhic. Nor, as the disclosure in the case evolved, does it follow that pursuit of this point was reasonable, that requires consideration of a much broader evidential canvass.
27. Finally, Mr Buttler submits that any substantial reduction in costs payable to the Claimant would have the consequence of depriving him of any effective remedy for the tort of false imprisonment. If a substantial reduction were to be made this would be borne by the legal aid fund and the Claimant liable to pay the statutory charge, which would consume any award for damages. This point rises to its crescendo with the submission 'justice would not be done' if notwithstanding that the court found a significant period of false imprisonment 'the Claimant walked away with nothing'.
28. The appellate courts have expressed concern at the prospect that those lawyers who practise 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 is that publicly funded practises would soon be unsustainable and access to justice compromised more widely. In my judgement, this is a factor which can and ought properly to be taken into account. It is not a subversion of the principles of the CPR, rather it is a reassertion of the principles in 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' (see Jackson LJ, para 24 above) can generate a battle that litigants can only lose.
29. In this litigation I have made yet further findings of wrongful detention in a case which already has a truly concerning history, for all those concerned with the preservation of civil liberties in a democratic society. That the period of wrongful detention was not as great as contended for by the Claimant does not, in this case, expunge the gravity of the tortious act. That a Defendant might be regarded as successful in litigation where such a finding has been made, might strike many as odd. That said, there is always an obligation on a party to refocus the litigation objectives, however grave the issues may be, as events evolve or, for example, as new material is disclosed. An illustration of this is the fact that the Claimant, albeit late in the day, abandoned the Hardial Singh point.
30. Ms. Bretherton, in her submissions, does not descend into the detail of the reasonableness of each of the claims nor identify the qualitative weaknesses of the evidence in the unsuccessful claims. Her case is essentially 'goal difference', i.e. won three lost one. At this point, so long after the hearing, it is difficult for her to take any other course. I am however very clear that the evidence supporting the claim of wrongful detention beyond the five month period that I have found was weak. In this respect, by trial, the Claimant's case was overly ambitious. Any litigant who pursues a case in such circumstances will know or be advised that he does so at his own peril i.e. at risk to his own award of damages. Applying all of the principles above therefore, having regard to the competing and, inevitably, not necessarily compatible arguments, I have come to the conclusion that the Defendant should pay the Claimant's costs but that, for the reasons I have indicated, these should be discounted by 40%. Accordingly I order that the Defendant pays 60% of the Claimant's costs.
31. By way of postscript, I would add that I have given careful thought to the principles set out at paras 28 & 29 above. Whilst these are, as I have emphasised, important, they do not eclipse the obligation on a party to cut his litigation objectives according to his evidential cloth. Even where important principles of the kind in contemplation here are concerned, this primary rule of litigation must serve as a brake on committed and well intentioned litigation.