Russell Haynes v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | John Leighton Williams |
| Judgment Date | 16 October 2012 |
| Neutral Citation | [2012] EWHC 4342 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Claim No. HQ10X02393 |
| Date | 16 October 2012 |
[2012] EWHC 4342 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
John Leighton Williams QC
Claim No. HQ10X02393
I handed down judgment in this action on 27 th July in the absence of the parties who were unable to attend. I reserved any consequential applications to this term. The parties have agreed an order, which was filed with the court on 5 th October 2012 but have not been able to agree on costs. I have now received written submissions on costs from counsel for both parties.
The action arose out of the Claimant's recall to prison and failure on the part of the Defendant to inform him promptly of the reasons for his recall and to ensure he was able to make representations to the Parole Board against the reasons for his recall. He alleged breaches of Articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, as contained in Schedule 1 Part 1 to the Human Rights ActHuman Rights Act 1998. Specifically he alleged breach of Article 5(2) (failing to inform him promptly of the reasons for his arrest) ; Article 5(4) (failing to enable him to participate in Parole Board proceedings to have the lawfulness of his detention reviewed); Article 6 (failing to provide him with access to a court to have his "civil rights and obligations", ie the lawfulness of his detention, determined) ; and of Article 8 (lack of procedural fairness which affected his private life). His case was that he should not have been recalled but having been recalled, would have been released earlier if the proper procedures had been followed.
He issued a claim form in June 2010 and sent a letter of claim to the Defendant's solicitors in October 2010 to which a response was received on 31 st March 2011 denying liability. Particulars of Claim, served on 29 th June 2011 were followed by a Defence and Reply. After some delay the trial took place on 12 th and 13 th July 2012. I reserved judgment. On 10 th July 2012, two days before the hearing, the Defendant's solicitor had written to the Claimant's solicitor accepting liability for breach of Article 5(2) but asserting that that acceptance of liability, coupled with an apology for what were described as "administrative errors" afforded the Claimant "just satisfaction".
I awarded the Claimant damages of £1,500 for breach of Article 5(2) and a declaration that his Article 5(4) rights were violated. I rejected his claims under Articles 6 and 8.
CPR 44.3 (2) provides that where the court decides to make an order about costs the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party but that the court may make a different order. CPR 44(4) provides that in deciding what order, if any, to make about costs, the court must have regard to all the circumstances, including the conduct of the parties and whether a party has succeeded on part of his case, even if he has not been wholly successful. CPR 44(5) states :
"(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 his case or a particular allegation or issue; and
(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.
…………"
The Claimant's case
For the Claimant Ms Gerry submits that he has succeeded in his claim and there are no sound reasons for departing from the general rule. She says the claims all arose from one course of conduct and were interlinked. She says that it was not unreasonable for the Claimant to have included claims for breaches of Articles 6 and 8, both of which concerned alleged incompatability between the statutory regime and Convention rights, and flowed from the breach of Article 5(4) rights.
She submits that if there is a case for departing from the general rule (and she submits there is not) then it can only be in respect of the claims under Articles 6 and 8 and submits that the time taken both in argument and evidence in respect of the Article 6 and 8 claims was minimal.
As to conduct she submits that there has been no exaggeration and that the Claimant has acted in a reasonable and proportionate way throughout the litigation whereas the Defendant defended all the way through save for the late admission of breach of Article 5(2), even then refuting the claim for damages which was successfully pursued. She points out too that the possibility of re-referral to the Parole Board, dealt with by the Defendant's witness, Ms Razvi, was not referred to in her witness statement and was raised only late in the day whereas an earlier reference would have given the Claimant an opportunity to consider whether or not to proceed with the claims under Articles 6 and 8. She submits that if I am minded to take into account the fact that the claims under Articles 6 and 8 failed then the proper course would be to allow the Claimant only 90% of his costs with the Defendant bearing his own costs.
The Defendant's case
For the Defendant Mr Sanders submits that this case calls for an issue based order and suggests, somewhat boldly, that the order should be that the Claimant pays the Defendant 25% of his costs, not to be enforced without leave of the Court save by way of set-off as against damages and/or costs.
In support he says that the Claimant both won and lost : breach of Article 5(2) was admitted with damages then awarded, breach of Article 5(4) was upheld but no damages awarded, and the Claimant lost under both Articles 6 and 8. As regards Article 5(4) he points out that whilst the Claimant succeeded in establishing breach, he was seeking to establish that he should not have been recalled at all and that the Parole Board would have ordered immediate release had it heard his representations, for which he was seeking compensation. I had concluded that earlier release was unlikely. As regards overall success under Article 5 he points out that the claim form had sought more than £15,000 but less than £50,000 and it was not until shortly before the trial, with exchange of skeletons, that appropriate damages were said to be in the region of £3,000.
He submits, too, whilst the claim form identified complexity of the action in addition to seeking declarations as reasons for bringing the action in the High Court, that the claims for declarations under Articles 6 and 8 increased the costs of the trial, sending it into a second day, and the fact that declarations were being sought meant the action had to be brought in the High Court under S 4(5) of the Human Rights Act.
He drew my attention to a number of authorities he relies on in support of his submissions. He relies on the words of Lord Woolf in AEI Rediffusion Music Ltd v Phonographic Performance Ltd [1999] 1 WLR 1507 (CA), at pp.1522–1523, where he had said of the then new CPR:
"From 26 April 1999 the "follow the event principle" will still play a significant role, but it will be a starting point from which a court can readily depart. This is also the position prior to the new Rules coming into force. The most significant change of emphasis of the new Rules is to require courts to be more ready to make separate orders which reflect the outcome of different issues. In doing this the new Rules are reflecting a change of practice which has already started. It is now clear that too robust an application of the "follow the event principle" encourages litigants to increase the costs of litigation, since it discourages litigants from...
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