Fleming v Sussex Police Force

An appellate court may interfere with a trial judge’s costs discretion where the judge made an error of principle, considered an irrelevant matter, omitted a relevant matter or reached a plainly wrong conclusion. The successful party remains presumptively entitled to costs.

An issues-based or percentage order may discourage the pursuit of inessential or unsuccessful issues, even without unreasonable conduct. Its justification depends on the effect of those issues upon the fair and efficient conduct of the litigation. The size of the damages award and the perceived expectations of a jury are irrelevant to whether such an order should be made. A claimant’s failure on allegations which added no sufficiently distinct or substantial costs need not displace the general rule.

The claimant recovered £5,025 following a jury trial against the police. He succeeded in assault and malicious prosecution, including aggravated damages, but failed in false imprisonment and several factual allegations. A misfeasance claim concerning retention of a DNA sample had previously been struck out by consent.

The judge ordered the police to pay the claimant’s costs, apart from making no order on the misfeasance issue. The police appealed, principally seeking no costs order or a reduction to 50 per cent. They argued that the judge had misunderstood the jury’s findings, had insufficiently reflected the claimant’s unsuccessful allegations and had wrongly sought to preserve the claimant’s damages from the effect of an adverse costs order.

The central issue was whether the judge’s error in treating the preservation of the damages award as relevant justified appellate variation of the costs order.

1. The appeal was dismissed unanimously. Although the judge had considered an irrelevant matter and the Court of Appeal could therefore reconsider the costs discretion, the order itself should remain undisturbed.

2. An appellate court should exercise considerable restraint before substituting its view for that of the trial judge on costs. Intervention is justified where the judge erred in principle, considered an irrelevant matter, omitted a relevant matter or reached a plainly wrong conclusion. The trial judge ordinarily has a superior understanding of the progress, detail and practical shape of the litigation.

3. The successful party remains presumptively entitled to costs under Rule 44.3(2) of the Civil Procedure Rules. The successful party is the party who has genuinely won at trial by establishing the essentials of the case and entitlement to the remedy sought. Rule 44.3 nevertheless permits issue-based or percentage orders. Such orders discourage litigation over inessential issues which are bound to fail or are irrelevant to resolving the dispute. Unreasonable or improper conduct is not a prerequisite.

4. The judge erred by treating preservation of the claimant’s damages as a reason to award full costs. Neither the size of the damages award nor the concern that an adverse costs order might consume it appears among the considerations in Rule 44.3. The supposed expectations of the jury were also irrelevant because costs are for the judge to determine after trial.

5. That error opened the costs decision to review but did not require a different order. The failed false-imprisonment claim and the claimant’s exaggerated allegations created no sufficiently discrete issue which materially increased the trial’s length. The same witnesses and much of the same evidence and cross-examination would have been required for the successful claims. The trial judge was best placed to assess whether the detailed cross-examination was justified.

6. The judge was also entitled to make no order on the discontinued misfeasance issue, having considered the parties’ conduct and the mishandling of the DNA sample. The omission of a separate order concerning the closely connected reply was too minor to justify appellate intervention. The police were ordered to pay the claimant’s appeal costs, subject to stated exclusions and detailed assessment.

• Court of Appeal (Civil Division): By [2004] EWCA Civ 643, dismissed the police force’s appeal against the costs order. The force was ordered to pay the respondent’s appeal costs, subject to specified exclusions.
• Brighton County Court: His Honour Judge Kennedy QC ordered the defendant to pay the claimant’s costs, subject to detailed assessment, while making no order as to costs on the discontinued misfeasance issue.