Sino, R (on the application of) v Secretary of State for the Home Department

Confidential settlement terms should be disclosed only where powerful reasons justify overriding the parties’ agreement. The public interest in transparency must be balanced against the public interest in encouraging settlement.

Damages for unlawful immigration detention must reflect both the nature of the breach and its impact in the context of the claimant’s full detention history. A later period of unlawful detention may aggravate earlier unlawfulness. There is no fixed formula for assessment, and summary assessment may be appropriate where the period and evidence are limited.

Costs remain subject to the general rule that costs follow the event, applied with broad discretion. Courts should avoid mechanically apportioning costs issue by issue and may take account of the sustainability of publicly funded litigation.

The judgment concerned consequential issues following the claimant’s successful judicial review claim concerning periods of immigration detention. The earlier judgment, [2015] EWHC 1831 (Admin), had found that detention between 13 July and 10 December 2013 was unlawful, while rejecting the remaining grounds.

The court was asked whether confidential terms of an earlier Tomlin Order should be disclosed, whether damages should be assessed summarily, how the parties’ costs should be allocated, and whether permission to appeal should be granted. The central issues were the preservation of settlement confidentiality, the proper valuation of damages for unlawful detention, and the application of the costs rules.

1. Confidentiality. The court refused to disclose the settlement sum in the earlier Tomlin Order. The judgment remained coherent without disclosure. The accidental publication of the sum for a short period did not destroy confidentiality. Open justice and transparency were important, but had to be balanced against the public interest in encouraging confidential settlements. Powerful reasons for setting aside the agreement were absent.
2. Damages. The Secretary of State’s detention power was administrative and depended on there being some prospect of deportation, applying the principle in A (Somalia) v SSHD [2007] EWCA Civ 804. The damages assessment had to consider the whole history of detention, including the claimant’s earlier prolonged detention. The later unlawful detention aggravated the earlier unlawfulness. Both the nature of the breach and its impact were relevant. There was no fixed formula, but the limited period, extensive history and protracted litigation made summary assessment appropriate. Damages were assessed at £3,750.
3. Costs. CPR 44.2(2), 44.2(4) and 44.2(5) preserved the general rule that the unsuccessful party pays the successful party’s costs, subject to all the circumstances. The court considered the guidance in Straker v Tudor Rose (a firm) [2007] EWCA Civ 368, including the need to identify the successful party before considering departures from the general rule. It rejected a mechanical approach based on success on three of four issues. The gravity of the wrongful detention, the claimant’s partial success, the weakness of part of the claim, and the effect of costs on publicly funded legal work were all relevant. The defendant was ordered to pay 60% of the claimant’s costs.
4. Cross-applications for permission to appeal had already been refused because neither satisfied the first-instance permission criteria.

The judgment dealt with consequential matters following the court’s earlier decision in [2015] EWHC 1831 (Admin). Cross-applications for permission to appeal were refused on 29 February 2016.