The High Court has awarded damages of just £3,750 to an Algerian man for a period of five months of unlawful detention. This was just the latest period of immigration detention for Mr Sino, though, who has been detained for a cumulative total of seven years and two months. Mr Justice Hayden had said in an earlier judgment

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.

The new judgment, R (on the application of Sino) v Secretary of State for the Home Department [2016] EWHC 803 (Admin), is a very belated follow up to the original decision in R (on the application of Sino) v Secretary of State for the Home Department (Rev 2) [2015] EWHC 1831 (Admin), which was itself a sort of sequel to R (on the application of Sino) v Secretary of State for the Home Department [2011] EWHC 2249 (Admin).

Confidentiality of earlier award of damages

The first issue addressed by the judge is whether the amount of damages previously awarded to the claimant in the 2011 litigation should be made public. The original order was a Tomlin order, meaning that it remained enforceable between the parties and where a condition of confidentiality can be included. The order did indeed state:

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.

The Home Office wanted the amount of the order disclosed. The legal arguments advanced by the Home Office are set out in the judgment (see paragraphs 6 to 10) but what is less clear is the underlying reason why the Home Office really wanted this previously confidential information in the public domain. In any event, the judge held that there were sound public policy reasons why Tomlin orders should remain confidential and rejected the Home Office arguments.

Damages

The next issue is that of damages. The judge decides that summary assessment is appropriate and awards £3,750 for the five month period, taking into account the previous history of the case.

On the issue of the relevance of the past history of prolonged unlawful judge says

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.

Given all that, the final amount awarded seems rather small, at least to this interested external observer. The basis of calculation is not clear, unlike for example the recent case of Santos in which the judge referred to the helpful quantum tables in Denholm and Dunlop.

Costs

Although the claimant succeeded in his action for damages for unlawful detention, the claimant lost on three other issues which were argued. The Home Office agreed that the claimant should be awarded the costs of pursuing the successful part of the claim but argued that the Home Office should be awarded costs for defending the unsuccessful parts. The result would be the claimant owing money to the Home Office.

Hayden J rehearses the Civil Procedure Rules and some of the leading authorities on costs. He emphasises that a broad brush and common sense approach to defining who is the victorious party is needed, and that there is a public interest in avoiding satellite litigation departing from the general rule that the unsuccessful party pays the costs of the successful party.

He ends up ordering that the Home Office pay 60% of the claimant’s costs. His reasoning is fairly brief in the end (para 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.

Interestingly, he also comments that the funding position of the parties is also relevant (para 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.

It is refreshing to see this concern expressed in a judgment. In a similar vein see Tesfay [2016] EWCA Civ 415 at paragraph 12 and the observations of Lord Hope in R (E) v JFS Governing Body [2009] UKSC 1 at paragraph 25:

It is one thing for solicitors who do a substantial amount of publicly funded work, and who have to fund the substantial overheads that sustaining a legal practice involves, to take the risk of being paid at lower rates if a publicly funded case turns out to be unsuccessful. It is quite another for them to be unable to recover remuneration at inter partes rates in the event that their case is successful. If that were to become the practice, their businesses would very soon become financially unsustainable. The system of public funding would be gravely disadvantaged in its turn, as it depends upon there being a pool of reputable solicitors who are willing to undertake this work. In R (Boxall) v Waltham Forest London Borough Council Scott Baker J said that the fact that the claimants were legally aided was immaterial when deciding what, if any, costs order to make between the parties in a case where they were successful and he declined to order that each side should bear its own costs. It is, of course, true that legally aided litigants should not be treated differently from those who are not. But the consequences for solicitors who do publicly funded work is a factor which must be taken into account. A court should be very slow to impose an order that each side must be liable for its own costs in a high costs case where either or both sides are publicly funded.

There is little evidence the sustainability of a legal aid practice has been of concern in the Upper Tribunal in costs decisions on judicial review applications.

This is not the final word on costs, though, of course. Watch out for the judgment of the Court of Appeal in Tesfay [2016] EWCA Civ 415, handed down today but not yet available on BAILII. That is a very interesting judgment and will get a separate write up here on Free Movement shortly.