AB v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 19 January 2023 |
| Neutral Citation | [2023] EWHC 72 (KB) |
| Court | King's Bench Division |
| Docket Number | Appeal Refs: QA-2020-000239, QA-2021-000110, QA-2021-000175, QA-2021-000179 |
[2023] EWHC 72 (KB)
THE HONOURABLE Mr Justice Murray
Appeal Refs: QA-2020-000239, QA-2021-000110, QA-2021-000175, QA-2021-000179
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ON APPEAL FROM ORDERS OF COSTS JUDGE JAMES
DATED 23 OCTOBER 2020 (x2), 16 NOVEMBER 2020,
23 NOVEMBER 2020, 4 MAY 2021, AND 12 JULY 2021
RELATING TO CASE NOS: 6LV57936 AND 7LV54200
(SCCO REF: SC-2018-DAT-002542 (formerly JJ1802567))
AND ORDER DATED 12 JULY 2021, RELATING TO
CASE NO: E11LV805 (SCCO REF: SC-2021-APP-000808)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr David Pilling for the Applicant
Mr Paul Joseph (instructed by the Government Legal Department) for the Respondent
Hearing dates: 17 November, 8 December 2021
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down are deemed to be 19 January 2023 at 10:00 am.
I have before me four applications for permission to appeal against seven orders made by Costs Judge James (“the Judge”) on various dates specified below. The identity of the applicant, AB, is protected by an anonymity order made by Jeremy Baker J on 11 June 2014. An application has been made by the respondent for the anonymity order to be discharged, but I do not deal with it in this judgment and for the moment I simply emphasise that it remains in place.
AB was at the time of the hearing of this matter a solicitor-advocate and a principal in his own firm. These applications for permission to appeal arise out of costs proceedings that AB has conducted on behalf of his firm, arising out of County Court proceedings issued by AB, as claimant, against the respondent, the Secretary of State for Justice (the Ministry of Justice having no separate legal personality). Consistent with the proceedings below and the documents provided by the parties in relation to these applications, I will refer to the respondent as the Ministry of Justice or “MoJ” in this judgment.
The applications for permission to appeal
AB has filed four separate applications for permission to appeal (“the PTA Applications”) against orders made by the Judge. Those orders were made in relation to the following proceedings:
i) Case Number 6LV57936 (“Claim 6LV”), which were proceedings issued in the County Court at Liverpool on 19 December 2006 by AB against the MoJ, alleging a breach of the MoJ's duty under section 7 of the Data Protection Act 1998 (“the DPA 1998”) in respect of a subject access request (“SAR”) made by AB on 22 October 2006, seeking a declaration of the breach, an order compelling compliance, and damages under section 13 of the DPA 1998;
ii) Case Number 7LV54200 (“Claim 7LV”), which were proceedings issued in the County Court at Liverpool on 1 November 2007 by AB (on his own behalf and for the benefit of the estate of his late wife and a third party) against the MoJ, alleging breaches of the MoJ's duties in respect of various SARs and requests under the Freedom of Information Act 2000 made on 19 December 2006, 21 April 2007, and 12 September 2007, respectively, seeking a declaration of those breaches, an order compelling compliance, and destruction of data under section 14 of the DPA 1998; and
iii) Case Number E11LV805 (“Claim E11”), which were proceedings issued on 20 August 2018 in the County Court at Liverpool by AB against the MoJ, involving claims under the Equality Act 2010 and the DPA 1998, which proceedings, following a mediation that took place on 12 February 2020 and the entry by the parties into a settlement agreement dated 12 February 2020, were stayed by a consent order dated 13 March 2020 approved by HHJ Freeland QC sitting in the County Court at Central London.
In more detail, the applications of AB that require determination are his:
i) application dated 7 December 2020 for permission to appeal against four orders made by the Judge, two made on 23 October 2020, the third on 16 November 2020, and the fourth on 23 November 2020, each relating to the costs proceedings arising out of Claim 6LV and Claim 7LV (Appeal Ref: QA-2020-000239) (“the First PTA Application”);
ii) application dated 20 May 2021 for permission to appeal against an order made by the Judge on 4 May 2021 relating to the costs proceedings arising out of Claim 6LV and Claim 7LV (Appeal Ref. QA-2021-000110) (“the Second PTA Application”);
iii) application dated 28 July 2021 for permission to appeal against an order made by the Judge on 12 July 2021 relating to the costs proceedings arising out of Claim 6LV and Claim 7LV (Appeal Ref: QA-2021-000175) (“the Third PTA Application”); and
iv) application dated 28 July 2021 for permission to appeal against an order dated 12 July 2021 of Costs Judge James relating to the costs proceedings arising out of Claim E11 (Appeal Ref: QA-2021-000179) (“the Fourth PTA Application”).
I note that there are other applications currently outstanding in relation to these matters, but I am solely concerned in this judgment with the PTA Applications.
The background to the PTA Applications
By way of illustration of the complex background to the PTA Applications, the parties, having been unable to agree, each separately filed a lengthy chronology.
AB's chronology dated 11 October 2018 comprises 231 pages, beginning on 12 March 2018 and ending on 6 October 2021. It is, in essence and for the most part, an abstract of the correspondence between various persons and bodies concerned in the background to AB's applications, including AB's solicitors, the Senior Courts Costs Office (“SCCO”), the Government Legal Department (“GLD”), the Liverpool District Registry of the High Court, and so on. The MoJ suggests that AB's chronology is far too long and detailed to be of material assistance, including lengthy extracts from dozens of items of correspondence that could have simply been cross-referenced to the Appeal Bundle. The MoJ has prepared a chronology that, while still lengthy, runs to a more manageable 27 pages. It begins on 19 December 2006, with the issue of Claim 6LV in the County Court at Liverpool and ends on 15 October 2021 with a hearing before Eady J relating to these PTA Applications. I have had regard to each of the chronologies in preparing this judgment.
Given the complex and lengthy history of these matters, it is necessary to summarise the background at considerably greater length than would be normal when dealing with an application for permission to appeal.
In due course, it was ordered that Claim 6LV and Claim 7LV be transferred to the High Court and tried together. The trial took place before Jeremy Baker J on 25–26 February 2014.
On 11 June 2014, Jeremy Baker J handed down his judgment in relation to liability and quantum in respect of the two claims (neutral citation: [2014] EWHC 1847 (QB)) (“the 2014 Substantive Judgment”). He set out the background to the proceedings up to the date of the trial, including the procedural history, in some detail in the 2014 Substantive Judgment at [1]–[31].
At the end of the 2014 Substantive Judgment at [59]–[62], Jeremy Baker J dealt with privacy issues, giving his reasons for making an anonymity order to protect AB's name. He also indicated that he would make related orders to protect AB's privacy, including an order under CPR r 5.4C restricting the ability of a non-party to obtain access to court documents relating to the case. At [61]–[62] Jeremy Baker J set out the terms of the anonymity order and related orders that he was making.
In the 2014 Substantive Judgment, Jeremy Baker J found that the MoJ had contravened the provisions of DPA 1998 in relation to the provision of what he termed “the disclosed material” and one item of what he termed “the withheld material” (see the 2014 Substantive Judgment at [29] for definitions of those terms). He made the following awards to AB:
i) in relation to AB's claim for compensation under section 13(1) of the DPA 1998, nominal damages in the conventional sum of £1; and
ii) in relation to AB's claim for damages for distress under section 13(2) of the DPA 1998, damages in the sum of £2,250.
On 28 November 2022, Jeremy Baker J handed down a separate judgment dealing with the costs aspects of the claims (neutral citation: [2014] EWHC 3934 (QB)) (“the 2014 Costs Judgment”), the parties having been unable to reach agreement. In their written submissions on costs, each party took the position that they should receive most, if not all, of their costs of the litigation and trial from the other party, failing which they invited the judge to consider a variety of intermediate positions.
In the 2014 Costs Judgment, Jeremy Baker J noted that, during the course of the litigation, AB discontinued or abandoned all of the claims he had other than in relation to material concerning the death of his wife. In other words, he abandoned his claims in relation to “the vast majority” of the material upon which he had originally founded his claims: the 2014 Costs Judgment at [13].
Ultimately, Jeremy Baker J concluded in the 2014 Costs Judgment at [15]–[16] that (i) the issues at trial represented only 20 per cent of the total figure of costs leading up to and include the pre-trial review and (ii) on the issues at trial AB “in large measure” succeeded.
Jeremy Baker J noted that AB contended in his written submissions that he was entitled to be awarded his costs on an indemnity basis. AB made various submissions about the conduct of those representing the MoJ. On those submissions by AB, Jeremy Baker J made the following comments in the 2014 Costs Judgment at [21]–[22]:
“21. … I do not consider that the defendant has shown an inappropriate attitude to the claimant in its dealings with him. Indeed to my...
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