RMJ v The Secretary of State for the Home Department [2014] EWHC 2048 (QB)

[2014] EWHC 2048 (QB)Case No HQ12X03711IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONCombined Court CentreCrown CourtSt AldatesOxfordOX1 1TLDate 24 th June 2014
Before
THE HONOURABLE MR JUSTICE SPENCER
Between
RMJ (a Protected Party) (by the Official Solicitor acting as his litigation friend)ClaimantThe Secretary of State for the Home DepartmentDefendant
Greg Ó Ceallaigh (instructed by Wilson Solicitors LLP) for ClaimantDenis Edwards (instructed by Treasury Solicitor) for DefendantHearing Hearing dates: 8 th, 9 th, 12 th May 2014

Judgment on ancillary issues

[1]I handed down my reserved judgment in this case on 11th June 2014 at Oxford Crown Court. Counsel did not attend. From an exchange of e-mails that day, shortly before judgment was handed down, it was clear that counsel were unable to agree all ancillary matters. I therefore indicated that I would consider any further written submissions before reaching my decision on those matters. I have considered further written submissions from Mr Edwards on behalf of the defendant and from Mr Ó Ceallaigh on behalf of the claimant, both dated 16th June 2014. This is my decision.

Nominal damages

[2]The first issue is the quantum of nominal damages. It was agreed at the hearing that the claimant was in any event entitled to nominal damages in respect of the first period of detention which was conceded to have been technically unlawful. Mr Edwards submits that nominal damages means the sum of £1. Mr Ó Ceallaigh submits that nominal damages in this case should be £1,000. He suggests that a range of £500- £1,000 was considered appropriate by the Supreme Court in Lumba [2011] UKSC 12, [2012] 1 AC 245, and that as that case was decided 3 years ago, £1,000 is a fair figure, allowing for inflation.[3]The traditional view is that nominal damages means “a sum of money that may be spoken of, but has no existence in point of quantity”: see Maule J in Beaumont v Greathead (1846) 2 C.B.494 at 499, and see McGregor on Damages (18th Edition, 2009) at paragraph 10-006 (page 415). I note that in Lumba the actual decision of the Supreme Court, by a majority, was that the claimants should be awarded nominal damages assessed at £1, as appears from the very end of the report at [2012] 1 AC 245, at page 360. Although some members of the Court in the minority (Hope, Walker and Hale SCJJ) thought that modest substantive damages should be awarded, ranging from £500 to £1,000, this was distinguished from an award of nominal damages, favoured by the majority. In other words, no-one was suggesting that nominal damages, if properly awarded, meant anything other than £1.My decision in this case was that only nominal damages are payable, and this was common ground if the rest of the claim failed.[4]Consistent with my approach, in the third supplement to McGregor (2012) at page 63, reference is made to further cases in which nominal damages of £1 have been awarded in cases such as this: R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909 (at paragraph 57), and R (Moussaoui) v Secretary of State for the Home Department [2012] EWHC 126 (Admin), paragraph 194.[5]In R (OM) Richards LJ said, at paragraph 57:
“For the reasons given above, however, I am satisfied that the tort has caused the appellant no loss, since she would and could have been detained in any event in the lawful exercise of the power of detention. I would therefore award her only nominal damages, in the sum of £1.”
[6]In my judgment that is exactly the position in the present case. I award the claimant nominal damages of £1 in respect of the first period of detention.

Costs

[7]The second issue is costs. Mr Ó Ceallaigh submits that there should be no order as to costs as between the parties. Mr Edwards submits that as the claimant has failed in his claim for substantial damages, there should be an order for costs against the claimant, that order not to be enforced without further permission of the court bearing in mind that he is legally aided.[8]There was no concession immediately proceedings were issued that any period of detention had been unlawful. That admission did not come until twelve months after the proceedings commenced. It was made in the defence dated 22nd November 2012, once the case had been transferred to the Queen’s Bench Division. However, thereafter the whole of the proceedings have been resolved in the defendant’s favour.[9]But for the impact of the claimant’s status as a protected party because of his mental health issues, and but for the fact of his being a legally assisted party, the appropriate order for costs, in my judgment, would have been that the claimant pay 75% of the defendant’s costs.[10]However, the situation is complicated by the two factors I have mentioned. First, the claimant is plainly mentally unfit at present, hence the intervention of the Official Solicitor as his litigation friend. The oral evidence from Professor Katona during the trial, supplementing his written reports, confirms that the claimant’s mental health has deteriorated sharply in recent months. Secondly, the claimant is plainly impecunious. He has no income or capital. He is, for that reason, legally assisted.[11]I have considered whether this is an appropriate case in which to make an order against a legally assisted claimant. Under the former legal aid costs regime it might have been appropriate to order him to pay the defendant’s costs on the basis that the order would not be enforced without the further leave of the court. However, the situation has changed since the coming into force of section 26 of the Legal Aid and Punishment of Offenders Act 2012, and the regulations thereunder.[12]The position is now set out in the Senior Courts Costs Office Guide. Paragraph 25.2, headed “Orders which the court awarding costs may make”, provides as follows:
“(a) If the court decides to make an order for costs against a legally aided party it may either make an order that the amount of the costs payable to the legally aided party is to be determined by a costs judge or District Judge, or make an order which specifies the amount which the legally aided party is required to pay. (b) If the court decided to make an order that the amount payable by the legally aided party is to be determined by a Costs Judge or District Judge, it may also state the amount that that person would, had costs protection not applied, have been ordered to pay, i.e. the full costs which would be determined by summary assessment. Alternatively, the court may make findings of fact, e.g. about the conduct of all the parties whichmust be taken into account by the Costs Judge or District Judge in the subsequent determination proceedings. (c) The court will not make an order which specifies the amount which the legally aided party is to pay, unless it considers it has sufficient information before it to decide what amount is reasonable and either the order also states the amount of the full costs (i.e the amount which that person would had costs protection not applied have been ordered to pay) or the court is satisfied that the full costs would exceed the amount which it has specified the legally aided party must pay…”
[13]The upshot of these changes appears to be that further significant expenditure would be required in order to determine what sum, if any, the claimant ought to pay. The reality is that, because he is totally impecunious, there could never be a substantive order against him. Nor is it a case where it would be appropriate to contemplate making an order against the Lord Chancellor (i.e. akin to the order sometimes made under the former costs regime against the Legal Aid Fund).[14]In all these circumstances I am satisfied that it is not appropriate to make any order for costs as between the parties. There will, however, be the usual order for assessment of the claimant’s own costs as a legally aided party.