COST BITES 51: CASE FOR FALSE IMPRISONMENT WAS APPROPRIATE FOR THE FAST TRACK NOT SMALL CLAIMS TRACK: DECISION UPHELD ON APPEAL

In Wilkins v Serco Ltd [2023] EWHC 61 (KB) Mrs Justice Heather Williams rejected the defendant’s appeal in relation to allocation of a case for false imprisonment. She upheld a finding that the case would have been allocated to the Fast Track not the Small Claims Track.  The case also, perhaps, sends out a lesson to defendants who take “bad” points in pre-action correspondence.  It is difficult to then argue, on assessment, that the points taken were so bad that the case was, in fact, straightforward.

“Mr Mallalieu contended that establishing liability was very straightforward because this was so evidently a bad point to take. However, this is a less than compelling point in circumstances where Serco’s own lawyers thought it a sufficiently viable contention to deny liability on this basis and to positively point blame towards the Magistrates’ Court, as opposed to promptly admitting the claim after receipt of the letter of claim”

THE CASE

The claimant issued proceedings for false imprisonment, alleging there had been a four and a half day delay in his relese from prison. Prior to the issue of proceedings the defendant had denied liability, alleging that liability lay with the Magistrates’ Court.  The claimant issued proceedings and the action was settled for £3,000. The settlement left open the basis upon which costs were to be assessed.   At the assessment the Deputy Master held that the case would have been allocated to the Fast Track. The Defendant appealed that decision, arguing that a case of this size and nature should have been allocated to the Small Claims Track.

THE CRITERIA FOR THE APPEAL

The judge held that the defendant was appealing a discretionary case management decision. The burden on the appellant was, therefore, a high one.

1. 1. At the hearing of the appeal the parties indicated that they agreed that it concerned a case management decision. Mr Mallalieu KC preferred to characterise the Master’s conclusion as the exercise of an evaluative judgement, whereas Mr Kirby KC described it as the exercise of a discretion. Nothing turns on this distinction for present purposes, as both counsel were agreed that the approach this court should take to the appeal was as described by Lewison LJ at para 51 of Broughton v Kop Football (Cayman) Limited [2012] EWCA Civ 1743, as follows:

“Case management decisions are discretionary decisions…The discretion is entrusted to the first instance judge. An appellate court does not exercise the discretion for itself. It can interfere with the exercise of the discretion by a first instance judge where he has misdirected himself in law, has failed to take relevant factors into account, has taken into account irrelevant factors or has come to a decision that is plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree. So the question is not whether we would have made the same decision as the judge. The question is whether the judge’s decision was wrong in the sense that I have explained.”

1. Accordingly, the assertion in Ground 1 of the grounds of appeal that the Master’s decision was “wrong” is to be understood in this context. In his oral address to the court, Mr Mallalieu’s over-arching submission was that the appeal should be allowed as no reasonable costs judge, properly directing themselves as to the law, could have concluded that this claim would have been allocated to the FT rather than the SCT. In support of that over-arching contention he made a number of criticisms of the Master’s reasoning, which I have summarised in para 29 below.

THE JUDGE’S CONCLUSION

The judge upheld the decision of the Costs Judge.

Discussion and conclusion

General observations

1. 1. As I have already identified at para 3 above, the question for me is whether the Master’s decision fell outside the boundaries of a reasonable exercise of his case management decision making.

1. 1. CPR 46.13(3) (para 18 above) refers to the track to which the claim “would have been allocated”. However, in a case such as the present which did not get as far as the filing of particulars of claim, a defence or DQs, the court’s assessment will inevitably involve a degree of imprecision. There will be uncertainties and unknowns. The costs judge will do the best they can, but in terms of the amount of information about the case that is available to them, they will not be in the same position as a judge making an allocation decision pursuant to CPR 26.5, where the pleadings and DQs will be in front of them. Additionally, an assessment pursuant to CPR 46.13(3) involves making a prediction as to what would have happened on the notional basis that the case did not in fact settle and proceeded to the allocation stage. I bear these features in mind when considering the application of the non-exhaustive factors identified in CPR 26.8(1) in the present context.

1. 1. Whilst CPR 26.8(1)(c) refers to “the likely complexity of the facts law or evidence” (para 21 above), in making this composite assessment, the decision maker is not confined by this provision or otherwise to only consider those aspects of a case that are shown to be more likely than not to arise.

1. 1. Accordingly, I do not consider that there is anything objectionable in principle in the Master taking into account the “possibility” of there being a jury trial of Mr Wilkins’ claim when he considered complexity (a topic I return to at para 42 below).

1. 1. On any view the Master’s ex tempore judgment was succinct. However, it is important not to lose sight of the context. He was giving his decision on two points of dispute concerning a bill of costs. In such circumstances it would not be at all unusual for a concise indication of the decision and supporting reasons to be provided, without explicit reference being made, for example, to the narrative history of the proceedings contained in the bill of costs. The Master identified the twin planks on which he based his conclusion, namely complexity and the importance of the claim to non-parties. He supported these features by reference to the submissions made by Mr Griffiths and the reasoning of the District Judge in McGuire. I can see nothing inherently objectionable in this approach and there is no reasons challenge brought in this case. In turn, it follows that when considering whether the Master was “wrong” (in the sense I have explained), it is legitimate for this court to refer to those materials as forming part of the reasons for his conclusion. In so far as Mr Mallalieu suggests there is uncertainty as to which of Mr Griffiths’ submissions were adopted by the Master, it appears relatively clear from paras 2 and 3 of his judgment that it was the submissions made in respect of both complexity and the importance of the claim to non-parties. I have already summarised the central points advanced by Mr Griffiths at paras 13 – 14 above. Alternatively, even if the Master’s judgment is to not to be read as adopting these points (contrary to my primary conclusion), they are still relevant for me to consider, as I have to decide whether a reasonable costs judge in the Master’s position could have arrived at the same decision.

1. 1. Whilst it appears that the claimant valued the case at more than £3,000 when the claim was issued (para 14 above), it was in any event at a figure under £10,000. Accordingly, the applicable starting point was that the SCT was the appropriate track. However, it is apparent from his judgment that the Master did take this as his starting point, before weighing the other factors, including the impact of complexity and the importance to non-parties.

1. 1. I do not accept Mr Mallalieu’s contention that the Master relied entirely upon generic features of false imprisonment claims in deciding that the FT would have been the appropriate track in this case. As I discuss more specifically below, the Master’s 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.

1. 1. In turn, I can see nothing objectionable in the Master relying upon the general characteristics of false imprisonment claims. It does not follow from the fact that CPR 26 does not specifically exclude false imprisonment actions from the SCT, nor make bespoke provision for their allocation (as is done with certain types of commonly litigated claims, summarised at para 20 above), that the general nature of this cause of action is irrelevant to the suitability of a particular track. There is nothing in CPR 26.6 – 26.8 that states or indicates that such generic matters cannot be taken into account and it would be a surprising proposition if so narrow an approach were required either in relation to false imprisonment or in relation to the many other types of claim that are not specifically addressed in the allocation rules. Indeed, in my judgment, this aspect is explicitly catered for by CPR 26.8(1)(g), as I do not read the “the importance of the claim” to non-parties, as confined to considerations arising from the particular circumstances of the case; the wording is capable of including importance arising from the nature of the cause/s of action relied upon. When asked to indicate the sorts of circumstances that could be taken into account in relation to a false imprisonment claim under his interpretation of CPR 26.8(1)(g), Mr Mallalieu instanced where there were other claims or potential claims challenging the same practice at the same custodial establishment. Whilst that would certainly be an example of where a claim could be important to non-parties, I do not see any basis for limiting the wider words of 26.8(1)(g) in this way. In any event, even if I were thought to be wrong on that point, the CPR 26.8(1) factors are non-exhaustive and other matters of apparent relevance may be considered save where they are expressly or implicitly excluded by the rules.

Complexity

1. 1. As I have already noted, the Master had to consider complexity by reference to the pre-action correspondence, as described in the bill of costs, since neither party had pleaded their case before settlement was achieved. As was clear from the bill of costs and from Mr Griffiths’ written and oral submissions to the Master, this was a case where liability was denied and the defendant had positively asserted that an identified third party, Thames Magistrates’ Court, was liable for the detention. This was a legally flawed proposition, given that Serco was the detaining authority and the fact of Mr Wilkins’ imprisonment was admitted. Mr Mallalieu contended that establishing liability was very straightforward because this was so evidently a bad point to take. However, this is a less than compelling point in circumstances where Serco’s own lawyers thought it a sufficiently viable contention to deny liability on this basis and to positively point blame towards the Magistrates’ Court, as opposed to promptly admitting the claim after receipt of the letter of claim. There was nothing to indicate that the defendant had subsequently resiled from this position in the period prior to settlement of the claim many months later. If Mr Wilkins was litigating the claim on the SCT without the assistance of solicitors (assuming for present purposes that he had not been side-tracked into suing the Magistrates Court after receiving the defendant’s letter) he may well have faced a liability hearing at which he had to argue over legal principles about false imprisonment against an experienced lawyer and in front of a judge who was not necessarily familiar with this tort.

1. 1. These were matters pertaining to complexity that were before the Master and which he was entitled to take into account. His reference to Mr Griffiths’ submissions in the context of complexity indicates that he did.

1. 1. I accept that there is also some force in the contention that the evaluation of general damages is not a straightforward matter. Unlike a claim for special damages, evidenced by a receipt, invoice or some other documentary material indicating the value or cost in question, quantification of general damages usually requires some reference to and understanding of the principles identified in the relevant case law. I have summarised the position in respect of false imprisonment claims at paras 25 – 27 above. It is a more nuanced exercise than a simple application of a universal hourly or daily rate.

1. 1. For the avoidance of doubt, I do not place any significance on the possibility of a claim for aggravated or exemplary damages, since whilst this is briefly mentioned in the bill of costs, it does not appear to have formed any part of Mr Griffiths’ written or oral submissions before the Master.

1. 1. I have already indicated that I do not consider that the Master erred in taking into account the possibility that there would be a jury trial (para 33 above). CPR 26.11(1) provides that an application for a jury trial must be made within 28 days of the service of the defence. Pursuant to section 66(2) CCA 1984, such a request gives rise to a jury trial as of right in a false imprisonment case (save where the trial requires “any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury”). Accordingly, whether or not a jury was to hear the case would usually be known by the time of allocation. However, Mr Wilkins’ case had not got to that point. The pre-action correspondence did not indicate whether an application for a jury would be made. It therefore remained a possibility in the notional scenario that the claim proceeded to the allocation stage. I accept that this possibility was a relevant factor for the Master to take into account, given that the involvement of a jury would plainly make the matter unsuitable for the SCT, albeit it carried less weight than an instance where a claimant has clearly indicated that a jury would be sought if the matter proceeded.

1. 1. In summary therefore, I reject Mr Mallalieu’s submission that there was no basis for the Master to have identified complexity as one of the factors supporting allocation to the FT in this case. In particular: liability had been denied; the defendant’s lawyers had identified a specific third party as responsible for the period of detention and had not resiled from that position; the determination of quantum involved the identification of and application of case law principles to a period of four and a half days’ imprisonment; and jury trial was a possibility. Furthermore, as I have already indicated, the Master did not rely upon complexity alone, but upon complexity in tandem with the other factor he identified, which I will examine next.

Wider importance of the claim

1. 1. I have already explained that when considering the importance of the case to non-parties, the Master was not limited to considering the specifics of the particular claim brought and was also entitled to have regard to generic features of the cause of action in question (para 37 above). I therefore reject the submission that the Master erred in principle in relying upon “the issue of the State interfering in a person’s human rights” and the factors identified by District Judge Avent. Furthermore, the latter involved an element that was specific to the circumstances of both Mr McGuire’s and Mr Wilkins’ claims (rather than generic to all false imprisonment claims) in terms of the failure of the detaining authority to effect their release after the court had made an order / passed a sentence that removed the basis of lawful detention.

1. 1. Accordingly, the Master was entitled to take into account the points made by Mr Griffiths and by District Judge Avent as relevant to the allocation decision, in particular:

i) The inherent importance of a claim for false imprisonment, given the significance that the common law attaches to liberty and to the infringement of fundamental constitutional rights. Further, that in running the relevant prison, Serco was discharging a delegated function of the State and the claim related to the intrusion of State power upon the claimant’s liberty and human rights;

ii) The general importance of it being clearly understood by those responsible for detention that court decisions affecting a person’s liberty and release from custody were to be actioned on a timely basis;

iii) If claims such as this were treated as suitable for the SCT, rather than the FT, solicitors would be deterred from taking on these sorts of claims, so that unrepresented claimants would face State institutions, invariably represented by experienced lawyers and in front of courts who did not necessarily have regular experience of these types of cases. In turn, this would impact on the degree to which detaining bodies would be held to account, with a likely knock-on effect on their practices (described by District Judge Avent as “a slippery slope”); and

iv) There were indications of the importance that Parliament attached to false imprisonment claims generally in terms of the section 66 CCA 1984 right to jury trial (applicable to few causes of action) and the fact that this was one of the areas where legal aid still remained available (albeit subject to the regulation 39 criteria I have set out at para 28 above).

Other factors

1. 1. It is clear that a number of the CPR 26.8(1) factors did not assist the claimant’s position in terms of allocation, in particular there were only two parties, there was no counterclaim and oral evidence was likely to be limited.

1. 1. However, in terms of other factors, Mr Kirby emphasised that the Legal Aid Agency had seen fit to grant legal aid in this case, but a decision that the case would have been allocated to the SCT would mean that no costs would be payable and in consequence, the damages otherwise due to Mr Wilkins would be subsumed by the statutory charge. This would leave him without vindication for the false imprisonment in circumstances where legal costs had been incurred through Serco unjustifiably denying liability and delaying in making an offer of compensation for a substantial period of time. This aspect was part of Mr Griffiths’ submissions below and capable of being considered pursuant to CPR 26.8(1)(i) as part of “the circumstances of the parties” or as a relevant factor additional to those listed in CPR 26.8(1).

Conclusion

1. 1. For the reasons that I have identified, I do not consider that the grounds of appeal are made out. The Master was entitled to arrive at the decision he did, which was based on the combined effect of complexity and wider considerations going beyond the parties, as he indicated. His reasoning involved no error of law and in light of the circumstances that I have identified and discussed, a decision that the case would have been allocated to the FT was not outside of the bounds of a reasonable exercise of his case management decision making.

Outcome

1. In the circumstances, the appeal is dismissed. The judgment was circulated in draft and the parties have had the opportunity to make written submissions on consequential matters, which I have addressed in the order I have made.