In assessing costs under CPR r.44.2, courts could and ought to take into account the fact that lawyers practising in publicly-funded work might not be able to recover remuneration at inter partes rates where they were successful, and that there was a real risk that publicly-funded practices would be unsustainable and access to justice compromised.
The court considered consequential issues following the claimant’s successful application for judicial review. 

The claimant had been unlawfully detained pending deportation by the defendant secretary of state between 2006 and 2011. He was released by court order and the parties agreed a Tomlin order providing for compensation from the secretary of state. The Tomlin order stated that the settlement figure would remain confidential between the parties. The claimant was detained again in 2012, and in 2013. Overall, the detention periods totalled seven years and two months. The claimant applied for judicial review of the lawfulness of the later detention periods. In R. (on the application of Sino) v Secretary of State for the Home Department [2015] EWHC 1831 (Admin), the court found that detention had been unlawful during the 2013 period only. 

The secretary of state submitted that (1) the confidentiality of the Tomlin order should be set aside, as without public knowledge of the amount it was impossible to understand why the secretary of state had determined that the claimant was not “destitute” for the purpose of providing accommodation; (2) damages for the second unlawful detention should be assessed summarily; (3) the claimant should not be awarded all of his costs as he had failed on three of the four issues. 

HELD: (1) The logical coherence of the original judgment did not require disclosure of the specific amount of damages paid. If that information had been crucial to the comprehensibility of the reasoning, that had to have been foreseeable during the prior submissions, but the point had been abandoned. The secretary of state’s only remaining argument was that of public interest in transparent scrutiny of the executive. While that was an important principle, it had to be balanced against the competing interest in encouraging settlement. The effective administration of the executive required it to have the opportunity like any other party to enter into confidential settlement terms. There had to be powerful reasons to set such agreements aside, but those had not arisen (see para.10 of judgment).

(2) The approach to evaluating damages was to first evaluate the nature and extent of the unlawfulness. The secretary of state’s power of detention was administrative only; it was circumscribed by the essential requirement that there was a prospect of achieving deportation, R. (on the application of A) v Secretary of State for the Home Department [2007] EWCA Civ 804, Times, September 5, 2007 considered. The periods of detention had to be evaluated in the context of the case history dating back to 2006; the second period of unlawful detention aggravated the earlier one. The likely impact on the claimant of further state-authorised unlawful detention had to be factored into the calculation, as did the fact that the unlawfulness had arisen in circumstances which were not sufficiently heedful of the case history. That said, the case pointed strongly to the need for summary assessment: the question of damages covered a limited period, the claimant had since been deported and litigation had been protracted, and the issue was not of great complexity. The appropriate sum was £3,750 (paras 12-13).

(3) CPR r.44.2(4) contained the rebuttable presumption that the unsuccessful party paid the costs of the successful party. There was no rule requiring deduction of a successful party’s costs if he lost on one or more issue. The claimant had succeeded on one aspect of the private law claim, and had been wholly unsuccessful on the public law claim. Appellate courts had expressed concern that lawyers practising in publicly-funded work might not be able to recover remuneration at inter partes rates in cases where they were successful. There was a real risk that publicly-funded practices would be unsustainable and access to justice compromised. That was a factor which could and ought to be taken into account. It was not a subversion but a reassertion of the principles in r.44.2(2), and therefore a restatement of a workable costs regime. The minute calibration of success and loss could generate a battle that litigants could only lose. In the instant case, the period of wrongful detention was not as great as the claimant had contended; that did not expunge the gravity of the tortious act. However, there was an obligation on parties to refocus the litigation objectives, however grave the issues might be. The evidence supporting the claim of detention beyond the five-month period was weak and the claimant’s case had been overly ambitious. A litigant pursuing a case in such circumstances would know or be advised that he did so at his own peril, and at risk to his own damages award. Applying those principles, the secretary of state should pay 60% of the claimant’s costs (paras 17, 24, 26, 28-30). 

Judgment accordingly

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