AB v Ministry of Justice

This judgement concerns the issue of costs arising from the inability of the parties to reach agreement on this issue, following my earlier judgement in this case relating to liability and quantum. The claimant has provided a witness statement dated 10.7.14 together with written submissions dated 10.7.14 and 11.9.14, whilst the defendant has provided a written witness statement dated 29.8.14 and written submissions dated 11.9.14 and 19.9.14.

This case has a long and complex history reaching back to the numerous requests made by the claimant to various government departments and other public bodies for details of the data and information held by them about him, arising out of his dealings with them on behalf of himself and third parties. These requests being made, inter alia, under the Data Protection Act 1998 (“DPA 1998”) and the Freedom of Information Act 2000 (“FoIA 2000”).

The ensuing litigation concerned the alleged failure of the defendant to provide the relevant information and data to the claimant in breach of s.7 of the DPA 1998. In the claim issued on 19.12.06 (“the 1^st claim”) various remedies were sought including compensation for damage and distress under s.13, whilst in the claim, stated to have been brought on behalf of the claimant personally and for the benefit of the estate of his wife and a third party, issued on 1.11.07 (“the 2^nd claim”) the remedies sought included destruction of the data pursuant to s.14.

Surprisingly, for a solicitor of the experience of the claimant, there was a lack of clarity and focus, both in relation to some of these requests and the pleadings in the ensuing litigation.

In the course of that litigation both the 1^st and 2^nd claims were stayed to allow for mediation to take place between January – June 2008, following which in March/April 2009 the defendant supplied a bundle of 10 documents which was referred to in the earlier judgement as the “disclosed material.” At the same time the defendant informed the claimant that there was other such material which was being withheld on the basis, inter alia, of professional privilege, which was subsequently referred to as the “withheld material.”

As I observed in the course of the previous judgement, it was after this disclosure that the claimant’s concerns became increasingly focused upon the material emanating from the death of his wife. However although the data concerning that event did eventually become the sole focus of the proceedings, this was not until relatively close to the date of trial, and in the intervening period it is evident from the content of the requests, pleadings, witness statements, correspondence and ancillary orders, that an extensive body of other issues and documents were potentially going to be required to be dealt with at the forthcoming trial.

It was not in fact until December of 2013 that the claimant approached the defendant with the proposal that the trial which had been fixed to begin on 25.2.14 should solely concern itself with issues arising out of the material relating to the death of the claimant’s wife. This proposal was accepted by the defendant, but subject to the caveat that the issue of costs would have to be dealt with in due course.

This was effectively the position which the litigation had reached by the time I was asked to conduct the Pre-Trial Review on 20.1.14. At that hearing I raised with the parties the fate of remaining issues in the case, other than those relating to the death of the claimant’s wife. Those acting for the parties took specific instructions from their respective clients, and agreed that the resolution of the issues which had been identified concerning the material relating to the death of the claimant’s wife, save as to any issue as to costs, would amount to a full disposal of all of the other remaining issues which had been raised in the litigation. A matter which I subsequently verified by listening to the DAB recording of the hearing upon receipt of the draft order which had, no doubt inadvertently, omitted a recital of this aspect of the agreement.

At the ensuing trial, and as is clear from my earlier judgement, the claimant was awarded nominal damages under s.13(1) together with £2,250.00 damages for distress.

The parties’ respective positions in relation to the issue of costs are at complete variance. In effect each party submit that they should receive most if not all of their costs of the litigation and trial from the opposing party. In the alternative they variously propose an almost infinite variety of possible positions in between those two extremes. However neither of them proposes that I should conduct a further hearing, and there is no evidence before me as to the amount or timing of the incidence of costs in this case. The fact that neither of the parties ask that I should conduct a further hearing is perhaps a tacit recognition that to do so would be a wholly disproportionate exercise requiring the court in effect to determine, amongst others, those issues which were laid to rest at the pre-trial review.

The Civil Procedure Rules deal with the general rules about costs at CPR 44 which at 44.2 provides that,

“(1)

The court has discretion as to –

(a)

whether costs are payable by one party to another;

(b)

the amount of those costs; and

(c)

when they are to be paid.

(2)

If the court decides to make an order about costs –

(a)

the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b)

the court may make a different order.

….

(4)

In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –

(a)

the conduct of all the parties;

(b)

whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

(c)

any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.

(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 its case or a particular allegation or issue; and

(d)

whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.

(6)

The orders which the court may make under this rule include an order that a party must pay –

(a)

a proportion of another party’s costs;

(b)

a stated amount in respect of another party’s costs;

(c)

costs from or until a certain date only;

(d)

costs incurred before proceedings have begun;

(e)

costs relating to particular steps taken in the proceedings;

(f)

costs relating only to a distinct part of the proceedings; and

(g)

interest on costs from or until a certain date, including a date before judgment.

(7)

Before the court considers making an order under paragraph (6)(f), it will consider whether it is practicable to make an order under paragraph (6)(a) or (c) instead.

…..”

Moreover, CPR 38.6 provides that,

“(1)

Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.

(2)

If proceedings are only partly discontinued –

(a)

the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and

(b)

unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.

…..”

In the light of the history of this litigation, the first issue which appears to me to be necessary to decide is whether the claimant discontinued or abandoned all of the other claims which he had, other than those relating to the material concerning the death of his wife. In this regard I am satisfied that whatever the true construction of the position leading up to the pre-trial review, what the claimant did at that stage had the effect of discontinuing or abandoning those other claims. Undoubtedly the issue of costs was left in abeyance. However the claimant being a solicitor and represented by experienced counsel would no doubt have readily appreciated his position and the potential effect of CPR 38.6 and/or the principle upon which this part of the rules is based. This was not a situation where the claimant had simply decided not to deploy one or more legal arguments in favour of stronger ones concerning the same subject matter. On the contrary, this was a situation where the claimant ceased to litigate about the vast majority of the material upon which he had hitherto chosen to do so.

Secondly, it is necessary to determine, as best I can in the present circumstances, the costs which were incurred in litigating those claims which had been effectively discontinued or abandoned, as opposed to those which were litigated at trial. In this regard I have already observed that neither party seek a detailed hearing about this matter. In reality therefore the parties ask me to reach a conclusion on the limited evidence which is presently before me. Moreover in the absence of any evidence as to the amount or timing of the incidence of costs in this case, there appears to be no alternative but to try and make the assessment on a percentage basis.

There appears to be no dispute that the material which would, but for the partial discontinuance or abandonment, have had to be considered by the court at trial is very extensive. Indeed this appears to me to be in accordance with what I have read of the history and contents of the requests, the ensuing litigation and the witness statements which were originally prepared for the trial. In these circumstances, and taking account of the significance attached to the material dealt with at the trial, I am of the view that it would be appropriate to consider that in percentage terms, those costs which are referable to the issues at trial as opposed to those issues which were effectively discontinued or abandoned are in the region of 20% of the total figure of the costs leading up to and including the pre-trial review.

The third issue which it is necessary to decide is whether the claimant succeeded at trial upon those issues which remained to be determined. In my judgement in large measure he did. The defendant’s position at trial was that although they acknowledged delay in the provision of the disclosed material, they denied that any of the withheld material ought to have been provided to the claimant. In any event the defendant denied that the claimant was entitled to damages for distress by reason of a failure by the claimant to prove any damage under s.13(1). Although the claimant succeeded in establishing his entitlement to have been provided with only one item of the withheld material, this had a material effect upon the assessment of damages upon which the claimant also succeeded. Moreover, there is no evidence of appropriate offers by the defendant to settle this part of the claim.

I have given careful consideration as to how these findings should impact on the question as to whether and if so what order for costs should be made in this case. In reaching my conclusions I have been mindful not only of the general rule as to costs in CPR 44.2.2 and CPR 38.6, but also the range of orders that may be made in CPR 44.2.6. and in particular CPR 44.2.7.

In relation to the costs incurred by the parties up to and including the pre-trial review, I consider that for the reasons I have explained in paragraphs 13, 14 and 15 above, whilst the defendant should receive a proportion of his costs from the claimant to reflect those parts of the original claim that were effectively discontinued or abandoned, the claimant should receive the costs of litigating those issues upon which he was successful at trial.

In relation to the post pre-trial review costs and those of the trial itself, I am of the view that as the successful party the claimant should receive his costs from the defendant. I have considered whether there should be any reduction in these to take into account the fact that he didn’t succeed in relation to all of the documents comprising the withheld material. However the remaining documents did not take up a significant part of the court’s time and for the reasons I have explained in paragraph 16 above I am of the view that there should be no such reduction.

In written submissions the claimant has argued his entitlement to be awarded his costs upon an indemnity basis. This is largely based upon those matters set out under paragraph 21 of the claimant’s most recent witness statement, which have been responded to by the defendant in the witness statement from Duncan Henderson dated 29.8.14. Although a number of issues are raised for consideration, the main ones appear to be the attitude of the defendant to the requested destruction of the disclosed and withheld material, the attitude of the defendant towards the claimant and the defendant’s failure to resolve matters appropriately in the course of the litigation by way of compromise.

In relation to the first of these it is of relevance that under s.14 destruction is dependant upon the data being inaccurate. However because of the defendant’s agreement to destroy the material post trial, this issue was not a matter which had to be determined. Indeed if it had, then in my judgement it was not necessarily a conclusion which would have been determined in favour of the claimant. Moreover, it seems to me that the position taken by the defendant was a reasonable one, namely that for as long as the claimant continued to pursue damages for delay in providing this material, then it was necessary to retain it in order to allow the court to reach its judgement. In relation to the second of these issues, I do not consider that the defendant has shown an inappropriate attitude to the claimant in its dealings with him. Indeed to my mind there are occasions in the course of the litigation when the claimant has displayed a less than appropriate attitude towards those representing the defendant. In relation to the third of these issues, I do not consider that the defendant has taken either unreasonable positions in respect of the litigation or unreasonably failed to enter into negotiations to settle the litigation. In this regard it is of relevance that not only did the claimant decide to effectively discontinue or abandon the majority of his claims shortly before the trial, but at trial did not succeed in relation to all of the documents within the withheld material.

In these circumstances I am quite satisfied that the criteria for the making of an indemnity order, in respect of unreasonable behaviour or otherwise, have not been made out by the claimant against the defendant. Indeed I have given consideration as to whether the claimant’s conduct of the litigation justifies any part of an award of costs to be made on an indemnity basis against him. However, although there are aspects of his conduct during the course of the litigation which could be open to criticism, ultimately it is not such as to satisfy the criteria for the making of an award on that basis.

Finally, although it is correct that the claimant did not succeed at all in relation to the 1^st claim and only succeeded on part of the 2^nd claim, not only have these two claims been ordered to be considered together from a relatively early stage, but I have taken these factors into account when reaching my overall judgement concerning the issues in relation to both the pre and post pre-trial review costs. Moreover, it seems to me that to seek to separate the allocation of costs between these two claims would be an extremely difficult and certainly disproportionate exercise.

In these circumstances the orders in relation to costs which I will make are that save and except where specific pre-existing orders require otherwise: