Sean Fitzgerald, R (on the application of) v The Parole Board for England and Wales

A costs practice protecting a court or tribunal which has acted judicially or quasi-judicially and remained neutral does not apply to a successful Human Rights Act 1998 claim for damages caused by that body’s administrative failings. In that situation the body is, in substance, an unsuccessful public authority, and the ordinary costs rules should apply.

Conduct which may have delayed the claimant’s own proceedings can justify a proportionate reduction in costs. It will not, without a sound evidential basis, justify depriving a successful claimant of costs altogether.

Mr Fitzgerald was a post-tariff life prisoner. Fordham J held that the Parole Board had unlawfully delayed his release hearing, in breach of article 5(4) of the European Convention on Human Rights. The judge awarded £10,000 damages under the Human Rights Act 1998, but made no order for costs.

Mr Fitzgerald appealed only the costs order. The principal issue was whether the costs practice governing neutral inferior courts and tribunals applied where the successful claim concerned administrative delay by the Parole Board and had resulted in an award of damages.

1. Appeal allowed. The judge’s costs order was reversed. The Parole Board was ordered to pay Mr Fitzgerald’s costs of the claim, subject to a 20% reduction, with detailed assessment if not agreed.

2. The practice described in Davies v Birmingham Deputy Coroner [2004] EWCA Civ 207 and applied to the Parole Board in R (Gourlay) v Parole Board [2017] EWCA Civ 1003 concerns a court or tribunal which has made a judicial or quasi-judicial decision and has maintained impartiality when that decision is challenged. Decisions about that practice are not strict binding precedents, although consistent exercise of the CPR discretion remains important.

3. That practice did not apply on the facts found below. The ten-month delay was administrative. It was not caused or contributed to by a judicial or quasi-judicial decision. The successful claim was therefore analogous to conventional public law litigation against a public authority. The Parole Board was the losing party on the damages claim, and the ordinary costs rules strongly indicated an order in Mr Fitzgerald’s favour.

4. The missed opportunity to seek an earlier substantive Administrative Court hearing was relevant to costs. It could not alone justify a no-costs order, since responsibility was not solely Mr Fitzgerald’s and there was no evidence enabling reliable findings about when a court hearing, a Parole Board hearing, or release would have occurred. A rough assessment justified a 20% reduction.

5. In an alternative analysis, if the delay had resulted from a good-faith judicial act, section 9(3) of the Human Rights Act 1998 would still have permitted compensation required by article 5(5). Under section 9(4), it would have been payable by the Crown because the Secretary of State had been joined. Subject to the same reduction issue, there was no reason why costs would then have been treated differently.

• Court of Appeal (Civil Division): Allowed the appeal and reversed the no-costs order: [2026] EWCA Civ 1199 .
• High Court of Justice, King’s Bench Division, Administrative Court (Fordham J): Held that administrative delay by the Parole Board breached article 5(4), awarded £10,000 damages under the Human Rights Act 1998, and made no order for costs.