NOMINAL DAMAGES AWARD LEADS TO NO COSTS AT TRIAL & 25% OF COSTS ON APPEAL

In Walker -v- the Commissioner of the Police of the Metropolis [2014] EWCA Civ 897 the Court of Appeal considered the appropriate costs award when a claimant succeeded on appeal but the appellate court held that he should only recover nominal damages.

THE CASE

The claimant brought an action against the police for unlawful imprisonment, assault and malicious prosecution. Those claims failed at trial and the claimant appealed.  On appeal the Court of Appeal found that there had been an unlawful imprisonment. The claimant had been unlawfully confined in the narrow part of the doorway  for a few seconds at a time when he was not under arrest.  The Court held that the claimant was entitled to damages in the sum of £5 for this detention. The appeal in relation to assault and malicious prosecution was dismissed.

THE JUDGMENT ON COSTS

Costs

Lord Justice Tomlinson :

1. This is the ruling of the court.

2. We have received full and helpful submission on costs from both parties. In a case like the present it is no surprise that the parties’ positions are diametrically opposed. The Appellant contends that he should be awarded 67% of the costs of the action, including the trial, and 100% of the costs of the appeal. The Respondent seeks to uphold the award of costs in his favour by the judge below, or contends for only a 5% reduction. As for the appeal, the Respondent again contends for an award of costs in his favour, whilst recognising that the Appellant’s limited success might tell in favour of some modest reduction in his entitlement of not more than 25%. However, the Respondent also recognises that the court may be minded to make no order for costs in respect of the appeal.

3. We deal first with the costs of the action, including the trial. Had the judge correctly applied the law as we have held it to be, the Appellant would at trial have established that he had been unlawfully detained and thus entitled to damages for false imprisonment. We have described his victory as the establishment of a fundamental constitutional principle. The damages awarded were however nominal and the Appellant did not on appeal suggest that there should have been a greater award. The Appellant points to his Notice to Admit Facts dated 30 April 2013 and is able to say that the Respondent could have conceded the principle and offered a suitable sum by way of compensation in advance of the trial, but chose not to do so. We doubt however that an offer of £5 for false imprisonment would have been accepted, not least because it is plain that the Appellant would have pressed his other two causes of action, assault and malicious prosecution, in respect of which he sought exemplary damages to reflect the distress, humiliation and anxiety which he had allegedly been occasioned. There can be no doubt that, looked at in the round, the Appellant’s action was a resounding failure, mitigated only by his establishing a trivial detention which might properly be characterised as “technical”. The judge made serious criticisms of the Appellant’s aggressive and violent behaviour during the course of the incident and disbelieved his evidence at trial.

4. As the Appellant had to take the matter to trial in order to establish that he had been unlawfully detained by a police officer, even for a trifling period of time, we do not think it appropriate that he should be directed to pay any part of the Respondent’s costs of the action. But equally we do not consider that the Appellant, who received £5 by way of damages following a four day trial in which he sought exemplary damages of the order of £25,000 – see the Claim Form – can properly be described in unqualified terms as the successful party. To bring an action of this nature to recover £5 was unjustified and disproportionate. The appropriate order as to the costs of the action is in our judgment that there should be no order.

5. We turn next to the costs of the appeal. Here the Appellant has succeeded on the constitutional principle, but his compensatory award is nominal. We can understand the reluctance of the Respondent to concede the point, on which he had succeeded below, but on the basis of the judge’s findings of fact we have concluded that the Appellant was right on this point and the Respondent wrong. The Respondent could have secured a measure of costs protection by a Part 36 offer of £5 and we are surprised that that course was not taken. The Appellant would then have been at real risk as to costs had he proceeded with the appeal. The unlawful detention point took up the greater part of the hearing and must have accounted for a great deal of the time spent in preparing skeleton arguments and so forth. We regard the Appellant’s unreasonable conduct as being of less relevance in our consideration of the costs of the appeal, although he did of course unsuccessfully invite us to revisit the judge’s findings as to his unreasonable response to the unlawful detention.

6. We have concluded that the Appellant’s success on the constitutional principle, albeit it profited him little, ought to be reflected in our costs order as to the appeal. In the circumstances, the appropriate order is, we think, that the Appellant should recover 25% of his costs of the appeal.

COMMENTARY

The claimant recovered:

• None of the costs of the trial.
• 25% of the costs of the appeal.

I have some sympathy with the defendant’s failure to make a Part 36 offer. If the claimant had accepted then there are arguments that the claimant would thereafter be entitled to his costs of the trial and of preparing for the appeal. The overall sums paid out by the defendant would have been much, much higher. If an offer of settlement was made it had to be more nuanced than a simple Part 36 offer.