PI Brief Update

FXS v The Mulberry Bush Organisation Ltd [2024] EWHC 2844 (KB) - Philip Matthews, Temple Garden Chambers

18/12/24. Date of judgment: 8 November 2024

FXS considered issues of costs where a claimant had not succeeded in establishing negligence at trial but was successful on other issues. 

Background

FXS, the Claimant, was placed at the Mulberry Bush School, the Defendant. It was alleged that during his placement, the Defendant acted negligently by (amongst other things) restraining him frequently and with excessive force; inappropriately confining him to his room; and failing to manage his behaviour appropriately. In the alternative, it was pleaded that the Defendant had assaulted the Claimant during the restraints, and/or the restraints constituted battery / trespass to the person. It was also alleged that the Defendant had falsely imprisoned the Claimant, on at least two occasions, by placing a towel in the doorway of his room to prevent him from leaving. The Claimant sought damages of £172,776.

Following a 9-day trial, Margaret Obi, sitting as a High Court Judge, found that the Claimant failed in relation to negligence, but was succeeded on the issues of battery and false imprisonment. Damages in the sum of £18,900.

The Arguments on Costs

Following the judgment on damages there were issues in relation to costs.

Ms Walker, for the Claimant, submitted that FXS was the successful party. She invited the Court to exercise its discretion to order the Defendant to pay his reasonable costs on an indemnity basis. In support of this submission Ms Walker pointed to the School’s repeated attempts to procure the discharge of FXS’s legal aid certificate.

Ms Foster, for the Defendant, submitted that FXS should not have the benefit of an order for costs. Alternatively, FXS should be awarded costs in respect of the issues upon which he succeeded, and the Defendant should be awarded costs in respect of the issues upon which it succeeded.

Judgment

The Judge rejected both of these arguments. The Defendant was ordered to pay the claimant’s costs on the standard basis: -

“The claim in negligence did not succeed, but I am satisfied that it would not be appropriate to limit the recovery of costs or make an issues-based costs order. In reaching this conclusion I note that the face down restraints and use of the towel method were central to this case and took up the vast majority of court time. Furthermore, all three heads of claim were intrinsically linked. To separate the issues, at this stage of the proceedings, would be a hollow exercise given that in relation to the negligence claim, the evidence from the factual and expert witnesses provided helpful context and was extensively relied upon by both parties. This included evidence with regard to the strategies deployed by the School to manage FXS’s challenging behaviour, the training and experience of the staff and the ethos of the School. In these circumstances, I see no good reason to depart from the general rule.” [§40]

It was further held that the hearing was an appropriate place to revise the costs budgets after there were additional, unforeseen, days at trial.

https://caselaw.nationalarchives.gov.uk/ewhc/kb/2024/2844#download-options

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