Wilkins v Serco – Allocation in false imprisonment claims: it’s not all about the money!

Articles
25 Jan 2023

In Wilkins v Serco the Court dismissed an appeal against a judgment of Deputy Master Haworth in which he determined that a false imprisonment claim which settled for £3,000 would have been allocated to the fast track. The decision has important implications for access to justice in relation to low value false imprisonment claims.

Background Facts

The Claimant was detained in prison on remand but was not released until four and a half days after he was given a suspended sentence at a video sentencing hearing. As he should have been released immediately, the Claimant brought proceedings for false imprisonment. Those proceedings settled for damages of £3,000 with an order that the Defendant pay the Claimant’s costs. However, the settlement expressly left open the basis on which those costs should be assessed. In their Points of Dispute to the Claimant’s costs bill, the Defendant asserted that the claim would have been allocated to the small claims track and invited the assessing judge to exercise their discretion under r.46.13 to assess costs on the basis of that track.

At the paper stage of the provisional assessment Deputy Master Haworth agreed with the Defendant and held that small claims track costs applied. The Claimant requested an oral rehearing, at which the Master was persuaded to change his mind; he held that if it had been allocated the claim would have been allocated to the fast track. The Claimant appealed apparently concerned that the decision of the Master might set some sort of precedent!

The Appeal

The appeal was advanced on the basis that the Deputy Master reached a decision that no court could have reasonably come to. It was argued that the value of the claim made the small claims track the ‘normal track’ for the claim and that none of the other factors relevant to allocation as set out in r.26.8 were sufficient to displace that. In particular, it was argued that the claim being one of strict liability was straightforward and that when considering the importance of the claim to non-parties the Deputy Master had erred in considering false imprisonment claims generally rather than this specific claim.

Heather Williams J dismissed the appeal. In so doing she noted the difficulties associated with the application of r.46.13(3) to claims which had not proceeded beyond the service of the claim form. The rule requires the costs judge to determine the track to which the claim would have been allocated, however as the Judge found there is imprecision in that exercise in such circumstances because of the inherent uncertainties involved.[1]

The Judge noted that the starting point for the exercise was that the small claims track was the appropriate track, however, she held that this was the starting point from which the Deputy Master had commenced his analysis. That analysis did not involve consideration of only the general characteristics of false imprisonment claim; his decision “was based on the combined effect of features specific to this case and those that were of more general application to false imprisonment cases.” The Judge also rejected the Defendant’s contention that the fact that false imprisonment cases were not expressly excluded from the small claims track by CPR Part 26 meant that the features of false imprisonment claims generally were irrelevant to the allocation decision. There was nothing inappropriate about considering factors relevant to false imprisonment cases generally as part of considering allocation.[2]

In respect of the complexity of the claim, the Judge noted that the Defendant had initially denied liability and blamed the Magistrates Court. It was accepted that this was legally flawed given that this was a strict liability tort. The Judge noted that if the Claimant had been litigating the claim on the small claims track as a litigant in person he may well have found himself arguing over liability against an experienced lawyer, in front of a judge who may not have been familiar with the tort. This was if “he had not been side-tracked into suing the Magistrates Court after receiving the defendant’s letter [denying liability]”.[3] The Judge also held that the evaluation of general damages in false imprisonment claims is not a straightforward exercise and that it “requires some reference to and understanding of the principles identified in the relevant case law it is a more nuanced exercise than a simple application of a universal hourly or daily rate”.[4]

Finally, the Master was entitled to take into account wider factors concerning the importance of the claim. This included generic features of the cause of action relating to the issue of the State interfering in a person’s human rights as well as specific factors relating to the Defendant’s failure to effect the Claimant’s “release after the court had made an order / passed a sentence that removed the basis of lawful detention.”[5]

Significance of the Decision

The Judgment is significant on several levels. Firstly, it is a victory for access to justice; had the appeal been successful the Claimant, who had been granted legal aid for his claim, would have found that his damages were subsumed by the statutory charge because no costs would be payable by the Defendant. As the Judge noted this would leave him without vindication for the false imprisonment that he had suffered.[6]

The case is also a useful reminder of the breadth of the circumstances that the Court is entitled to take into account on allocation. The list of factors under r.26.8 is broad in itself but that list is not exhaustive and the Court is entitled to give appropriate weight to other relevant factors.

The commentary on the application of r.46.11 will also be of utility to costs practitioners. The acknowledgment of the inherent uncertainties involved in that exercise, particularly where cases settle well before an allocation decision would normally be taken, is an important observation and may well be utilised by parties arguing that the Court should not exercise the discretion afforded under the rule. In any event, it sounds a warning to parties considering appealing a determination by a costs judge in such circumstances. The exercise of a case management decision is a difficult matter to appeal, it may be harder still where the uncertainties in the exercise under r.46.13(3) are also to be taken into account.

Finally, whilst all case management decisions turn on their own facts, it would be surprising if the Judge’s consideration of the general factors applicable to all false imprisonment claims was not relied upon as part of the analysis for Judge’s on the question of allocation in future claims of this type.


PJ Kirby KC and Martyn Griffiths acted for the Claimant on the appeal, Martyn also acted for the Claimant at first instance.

Read the full judgment here.

[1] Judgment, paragraph 31.

[2] Judgment, paragraphs 36-7.

[3] Judgment, paragraph 38.

[4] Judgment, paragraph 40.

[5] Judgment, paragraph 44.

[6] Judgment, paragraph 47.

Authors

PJ Kirby KC

Call: 1989 | Silk: 2013

Martyn Griffiths

Call: 2011

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