Background
Sean Fitzgerald was serving a life sentence for murder, with his minimum term expiring on 14 September 2022. Although his parole dossier was complete by 3 August 2022, the Parole Board did not hold his oral hearing until 15 August 2023, when it directed his release. He was released to approved premises on 7 November 2023.
In judicial-review proceedings, Fordham J held that the delay in providing a speedy parole hearing breached Article 5(4) of the European Convention on Human Rights. The judge found that, without the breach, Fitzgerald would probably have been released ten months earlier and awarded him £10,000 under the Human Rights Act 1998. The judge nevertheless made no order for costs, meaning that Fitzgerald’s legally aided damages were likely to be absorbed by the statutory charge. Fitzgerald appealed only against that costs order.
The Court’s Holding
The Court of Appeal unanimously allowed the appeal. It held that the costs practice protecting courts and tribunals that remain neutral when their judicial decisions are challenged, developed in Davies and Gourlay, did not apply to Fitzgerald’s successful damages claim. On the High Court’s findings, the relevant delay resulted from the Parole Board’s administrative failings, not from a judicial or quasi-judicial decision.
Fitzgerald was therefore the successful party and the Board the losing party in what, for costs purposes, was conventional litigation against a public authority. The normal costs rules applied. However, because Fitzgerald’s representatives had not pressed for the expedited Administrative Court hearing contemplated by an earlier order, the Court of Appeal reduced his recoverable costs by 20%. It ordered the Board to pay the remaining 80%, subject to detailed assessment if not agreed.
Key Takeaways
- The special costs protection available to a neutral court or tribunal does not extend to a Human Rights Act damages claim arising from the Parole Board’s administrative failings.
- The Article 5(4) breach was the failure to provide a speedy parole hearing; the court did not hold that Fitzgerald’s detention was itself unlawful.
- A successful claimant’s recoverable costs may be reduced where the claimant’s representatives failed to pursue an available opportunity to expedite the proceedings.
Why It Matters
The decision distinguishes challenges to judicial or quasi-judicial decisions, where a neutral tribunal may ordinarily avoid costs liability, from damages claims based on a tribunal’s administrative conduct. A public body does not obtain special costs protection merely because it also performs judicial functions.
The judgment also shows that courts may account for litigation conduct when exercising the costs discretion even where the claimant succeeds on the central human-rights claim.