Audi Dama Masozera Johnson v Secretary of State for the Home Department

Where a claimant succeeds only on an admitted period of unlawful detention, but loses all ultimately contested issues and would have remained lawfully detained in any event, the defendant is the successful party for costs purposes. The general rule that costs follow the event applies unless the circumstances justify departure.

Serious delay and deficiencies in disclosure may justify a targeted costs order for a specific disclosure application, even where they did not make the trial unfair or affect its outcome. A claimant whose detention would have been lawful following the required review is entitled only to nominal damages for the admitted period of unlawfulness.

The claimant brought claims arising from prolonged immigration detention and an attempted removal to Uganda. Following a liability trial, the court rejected the claims except for an admitted period of unlawful detention from 17 March to 10 April 2014. The liability judgment was reported as [2022] EWHC 3120 (KB).

The remaining issues were whether the claimant would have been lawfully detained during the admitted period, the level of damages, and the parties’ costs, including costs arising from late disclosure and interlocutory applications. The issues were determined on the papers.

1. Costs. The court determined costs in principle and left any disagreement about quantum to detailed assessment. The defendant had won on every ultimately contested issue. The claimant’s success concerned only an admitted period of detention which, had the required review occurred, would itself have been lawful. The general rule in CPR 44.2 therefore applied, and the defendant was awarded the costs of the case and trial.
2. The defendant’s disclosure failures were significant and should not have occurred. They did not, however, render the trial unfair or justify reversing the overall costs order. It was reasonable for the claimant to pursue his specific disclosure application. The claimant was accordingly awarded the reasonable costs of that application, subject to detailed assessment. The costs of the witness summons applications were refused.
3. Damages. Having regard to the findings that detention immediately before 17 March 2014 and immediately after 10 April 2014 was lawful, the court was satisfied that the claimant would have remained detained lawfully throughout the admitted period if the mandatory review had taken place. Only nominal damages were therefore awarded.
4. The defendant was awarded the reasonable costs of submissions concerning the admitted detention period. Costs payable to the claimant under Ellenbogen J’s order of 25 May 2021 and for the specific disclosure application were set off against the defendant’s costs awards. All costs were subject to detailed assessment if not agreed.

The judgment was a first-instance determination of damages and costs following the liability judgment reported as [2022] EWHC 3120 (KB). The remaining issues were decided on the papers.