Court of Appeal allows Sean Fitzgerald’s appeal and reduces costs by 20%.
The Court of Appeal has ordered the Parole Board for England and Wales to pay Sean Fitzgerald’s legal costs after finding that the costs approach taken by the High Court was wrong in principle. The court reduced the costs by 20% to reflect a later “missed opportunity” in the conduct of the litigation.
Parole Board costs were at the centre of the appeal. Fitzgerald, who had been sentenced to life imprisonment for murder, challenged a delay in the Parole Board holding a hearing to determine whether it was safe to release him after his minimum term expired. The High Court found a breach of Article 5(4) of the European Convention on Human Rights and awarded him £10,000 in damages, but made no order for costs.
Fitzgerald’s minimum term expired on 14 September 2022. His case had been ready for listing, but a hearing scheduled for 11 August 2022 was not restored after the case dossier became complete. The High Court found that there was no active case management after 3 August 2022.
The Parole Board subsequently refused to prioritise the case in October 2022. At the time, thousands of cases were ready to be listed and the court found that the problem was an administrative shortage of people available to chair oral hearings. Fitzgerald’s eventual hearing took place on 15 August 2023, when the Parole Board directed his release.
The High Court concluded that the delay meant Fitzgerald remained detained for 10 months longer than he otherwise would have been and awarded £10,000 compensation. However, it declined to order the Parole Board to pay his costs, relying on principles concerning costs against courts and tribunals.
The Court of Appeal took a different view. Lady Justice Elisabeth Laing said the claim was not simply a challenge to a judicial decision by the Parole Board. It also concerned unlawful administrative delay and resulted in an award of damages against the Board. The court considered Fitzgerald the successful party on that aspect of the claim and said the normal costs rules should therefore apply.
The court also considered the fact that Fitzgerald’s representatives had not secured an earlier substantive judicial review hearing. It found that this “missed opportunity” was relevant to costs, but would not by itself have justified making no costs order. The Court of Appeal therefore exercised the discretion afresh and reduced Fitzgerald’s costs by 20%.
The court also addressed the position if the Parole Board had been acting in a judicial or quasi-judicial capacity. It held that section 9 of the Human Rights Act 1998 would then have been relevant. Where a judicial act is done in good faith, damages may nevertheless be awarded to the extent required by Article 5(5), with the award made against the Crown and the appropriate person joined to the proceedings.
The Court of Appeal accordingly allowed Fitzgerald’s appeal and reversed the High Court’s costs order. The Parole Board must pay his costs of the claim, subject to the 20% reduction and detailed assessment if the parties cannot agree them.
Parole Board costs must be paid to Sean Fitzgerald after the Court of Appeal allowed his appeal against a High Court decision that had made no order for costs. The court held that the normal costs rules applied to the damages claim arising from the Board’s administrative delay. It ordered the Parole Board for England and Wales to pay Fitzgerald’s costs, subject to a 20% reduction.
The case concerned Fitzgerald, who was sentenced to life imprisonment in 2010 with a minimum term of 13 years. His tariff expired on 14 September 2022. Before then, professional witnesses had supported his release and the Parole Board had previously recommended his transfer to open conditions.
A Parole Board hearing had been listed for 11 August 2022. However, on 1 August, the case manager considered the hearing ineffective because an outstanding report had not yet been received. The report was supplied on 28 July and added to the dossier on 3 August. The Court of Appeal noted that the case was then complete, but the hearing was not restored or re-fixed.
Fitzgerald’s tariff expired without a hearing. His solicitors subsequently asked the Board to prioritise the case, but a duty member refused the request on 17 October 2022. The High Court later found that the delay was unlawful and that there had been no active case management. At the time, 3,273 cases were ready to be listed, with insufficient panel members available to chair oral hearings.
The judicial review proceedings were eventually permitted in February 2023. The Parole Board fixed a hearing for 15 August 2023, and on that date directed Fitzgerald’s release. He was released to approved premises on 7 November 2023.
The High Court found that the unlawful delay breached Fitzgerald’s right under Article 5(4) of the European Convention on Human Rights to have the lawfulness of his detention decided speedily. It concluded that, had the hearing been promptly re-listed, Fitzgerald would probably have been released earlier. The judge awarded £10,000 in damages for the resulting ten-month period of additional detention, but made no order for costs.
The Court of Appeal focused on whether the established approach to costs against courts and tribunals applied to this case. It distinguished the claim from an ordinary challenge to a judicial decision by the Parole Board. Fitzgerald had also brought a Human Rights Act damages claim against the Board arising from administrative failings that had resulted in unlawful delay.
The court concluded that the delay had not resulted from a judicial decision. Instead, the High Court had found that it resulted from administrative failings, including the Board’s inability to find sufficient panel members. Because Fitzgerald succeeded in obtaining damages against the Parole Board, the Court of Appeal considered him the successful party on that aspect of the claim and held that the ordinary costs rules should apply.
The court also considered a later “missed opportunity” to obtain an earlier substantive judicial review hearing. It decided that this did not justify making no order for costs. However, because the missed opportunity was relevant to the costs assessment, the Court of Appeal reduced Fitzgerald’s costs by 20%.
The Court of Appeal therefore allowed the appeal, reversed the High Court’s costs order and directed the Parole Board to pay Fitzgerald’s costs, subject to the 20% reduction and detailed assessment if the parties cannot agree them.