Antony Wilkins v Serco Limited

When assessing the track to which an unallocated claim would have been assigned for costs purposes, the court must make the best available prediction despite incomplete information and the notional nature of the exercise. A claim valued below the small-claims threshold is ordinarily suitable for that track, but the starting point may be displaced by the non-exhaustive factors in CPR 26.8. In false-imprisonment claims, relevant considerations may include denied liability, the legal complexity of strict-liability principles, non-mechanistic assessment of general damages, the possible right to jury trial, the constitutional importance of personal liberty, and the wider public importance of accountability for State detention. The factors may arise from both the particular claim and the general nature of the cause of action.

The claimant brought a claim in false imprisonment and under Article 5 of the European Convention on Human Rights after being detained for four and a half days following the imposition of a suspended sentence. The claim settled for £3,000 in damages, with costs left for detailed assessment.

On provisional assessment, Deputy Master Haworth treated the claim as suitable for the small claims track. On review, he concluded that it would have been allocated to the fast track, having regard to complexity and the importance of the claim to non-parties. Serco appealed, arguing that the decision was legally erroneous or outside the proper range of case-management discretion. The central issue was whether that conclusion was one which a reasonable costs judge could have reached.

1. The appeal was dismissed. The question was whether the Master’s decision fell outside the generous ambit within which reasonable decision-makers may disagree. The appellate court did not exercise the allocation discretion afresh, applying the approach in Broughton v Kop Football (Cayman) Limited [2012] EWCA Civ 1743.

2. Under CPR 46.13(3), the court had to predict the track to which the claim would have been allocated. Because the claim settled before particulars of claim, a defence or directions questionnaires, the assessment necessarily involved uncertainty and imprecision. The court was not confined to matters shown to be more likely than not to arise.

3. The value below £10,000 established the small claims track as the starting point under CPR 26.6(3), but did not determine the outcome. The factors in CPR 26.8(1) were non-exhaustive. The importance of a claim to non-parties could include importance arising from the nature of the cause of action, not merely consequences specific to the individual claim.

4. The Master was entitled to treat complexity as significant. Liability had been denied on the legally flawed basis that the Magistrates’ Court was responsible for the detention. A litigant in person might therefore face a contested liability hearing involving legal principles concerning false imprisonment. Quantifying general damages also required application of case-law principles and was not a mechanical daily or hourly calculation. The possibility of a jury trial was relevant, although it carried less weight than an express indication that a jury would be sought.

5. The Master was also entitled to consider the wider importance of claims concerning State interference with liberty, the need for detention authorities to implement release decisions promptly, the risk that small-claims allocation would deter solicitors and leave individuals facing experienced State defendants without representation, and the significance of the statutory right to jury trial and continuing legal-aid availability. The claimant’s circumstances, including the possible absorption of damages by the statutory charge, were also relevant.

6. The combined effect of complexity and wider considerations justified the conclusion that allocation to the fast track was within the reasonable range. The Master had made no error of law.

• Senior Courts Costs Office: Deputy Master Haworth initially treated the claim as suitable for the small claims track on provisional assessment. On review, he concluded that it would have been allocated to the fast track.
• High Court (King's Bench Division): The appeal from the review decision was dismissed.