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

Where an agreed judicial review order records that immigration detention was unlawful because the defendant failed to comply with internal guidance, the court may declare false imprisonment and provide for compensatory damages to be assessed in the County Court. An agreed order may also include permission to withdraw an Article 3 claim and consequential costs provisions.

In a legally aided case, a payment on account of costs under CPR r 44.2(8) may be fixed as a percentage of the professionally drawn bill. The percentage depends on evidence about likely recovery on detailed assessment and the purpose of avoiding delay in payment.

The claimant challenged his immigration detention from 1 to 17 November 2021. The parties agreed that detention was unlawful because the Secretary of State failed to comply with interim internal guidance concerning detention of people with HIV who required antiretroviral medication.

The court approved an agreed order declaring that the claimant had been falsely imprisoned and was entitled to compensatory damages. The claim was to be transferred to the County Court at Central London for assessment if damages were not agreed. The claimant was also permitted to withdraw his Article 3 ECHR claim.

The remaining disputed issue was the appropriate payment on account of the claimant’s publicly funded costs.

1. Agreed order and liability. The court approved the agreed order. It declared that the claimant had been falsely imprisoned from 1 to 17 November 2021 and was entitled to compensatory damages. The claim was to be transferred to the County Court at Central London for assessment of damages.
2. The agreed matters established that the detention was unlawful because it did not comply with the Secretary of State’s Interim Internal Guidance concerning individuals with HIV requiring antiretroviral treatment. The failure to follow the guidance was a material public law error and caused the detention, because the claimant would not have been detained had the guidance been followed.
3. The claimant’s Article 3 ECHR claim was withdrawn by permission. The defendant was ordered to pay the claimant’s reasonable costs on the standard basis, with detailed assessment of publicly funded costs if required.
4. Payment on account. Under CPR r 44.2(8), the defendant was ordered to pay 60% of the claimant’s schedule of costs within 14 days of service. The court accepted evidence that recovery would exceed 80% and would not fall below 60%.
5. The percentage was supported by the principle identified in Mars UK v Teknowledge Ltd [1999] 2 Costs LR 44: the payment should reflect an amount likely to be recovered, while avoiding overpayment and preventing delay until detailed assessment.

This was a first-instance judicial determination on the papers under the Administrative Court Judicial Review Guide 2022 §24.4 and CPR PD54A §16.1. The court approved an agreed order.