RMJ v The Secretary of State for the Home Department

Nominal damages compensate a claimant where a tort is established but no actual loss has been suffered. Where detention was technically unlawful but the claimant would lawfully have been detained in any event, the appropriate nominal award is £1. A minority view favouring modest substantive damages does not alter that distinction. Costs against a legally aided claimant require consideration of the current statutory costs-protection regime and the practical consequences of such an order.

The court had previously determined the substantive claim and concluded that only nominal damages were payable for the first period of detention. The parties could not agree the amount of those damages or the appropriate costs order. The claimant sought £1,000, relying on the range discussed by some members of the Supreme Court in Lumba. The defendant submitted that nominal damages meant £1 and sought costs. The ancillary issues were therefore the correct nominal award and whether costs should be ordered against a protected, legally aided and impecunious claimant.

1. Nominal damages. The claimant was entitled to nominal damages for the first period of detention, which had been technically unlawful. Nominal damages signify a sum with no substantial quantitative existence and, where no loss was caused, the proper award was £1.
2. The claimant’s reliance on Lumba was misplaced. The majority decision awarded nominal damages of £1. The awards of £500 to £1,000 discussed by members of the minority were modest substantive damages, not nominal damages.
3. The reasoning in R (OM) v Secretary of State for the Home Department applied. Although the detention was unlawful, the tort caused no loss because the claimant would and could have been detained lawfully in any event. Nominal damages were therefore assessed at £1.
4. Costs. The substantive proceedings had been resolved in the defendant’s favour, but the claimant was a protected party with serious mental-health problems and was wholly impecunious. Section 26 of the Legal Aid and Punishment of Offenders Act 2012 and the resulting costs regime meant that further expenditure would be required to determine any sum payable by him. In practical terms, no substantive recovery of costs could be made.
5. No order for costs was made as between the parties. The claimant’s own legally aided costs were to be assessed in the usual way.

Not an appeal. The judgment determined ancillary issues arising after the court’s reserved judgment handed down on 11 June 2014.