Wilkins v Serco: Felix Couchman of TV Edwards, represented Anthony Wilkins

In Wilkins v Serco, Felix Couchman of TV Edwards, representing Anthony Wilkins, was successful in getting an appeal against a judgement regarding allocation of track in a claim for false imprisonment dismissed. Prima facie, this may appear to be a case just about money. However, in actuality, the outcome of the judgement may help to safeguard future individuals who wish to seek damages from the State or those acting on its behalf.

The case

TV Edwards received instructions from the Claimant to pursue a claim for false imprisonment. Mr. Wilkins had been arrested and released on bail. He was then further arrested for breaching his bail and was subsequently remanded into custody.

The court had listed Mr. Wilkins’s sentence hearing to take place via prison video link, meaning that Mr. Wilkins dialed into Thames Magistrates Court from inside HMP Thameside rather than appear in person. 

At the hearing, Mr. Wilkins was given a suspended sentence, meaning he ought to have been automatically released from custody. However, he was not released until some four and a half days later, owing to failures by Serco, the private company employed by the state to ‘lawfully’ detain prisoners. In March 2017, Mr. Wilkins instructed TV Edwards to issue proceedings against Serco for his unlawful detainment.

The Costs

TV Edwards had applied to the Legal Aid Agency for a Legal Aid Certificate to cover costs in pursuing such a claim. Applying for legal aid in a case such as this is not straightforward. There is a test of whether providing legal aid is in the “interest of justice” and is subject to strict criteria. The Legal Aid Agency issued a Legal Aid Certificate, confirming that, in this instance, the case was considered serious enough to require legal aid and met the requirements.

Initially, Serco denied liability and insisted the claim should be issued against HM Court Service. We contested that issuing proceedings against HM Court Service was the correct path – it wasn’t the Court Service which unlawfully detained Mr. Wilkins – he was under the jurisdiction of Serco at the time.

TV Edwards’ persistence paid off, and nearly two years later, Serco admitted liability and agreed to settle damages for Mr. Wilkins at £3,000 plus our costs but on the caveat that neither side was precluded from raising issues on track allocation upon assessment.

Track allocation in civil proceedings is designed to ensure that all cases are carried out in a way which is just. There are three “tracks” which are designed to deal with cases of different value and complexity. Namely, small claims track, fast track or multi-track.

The small claims track is designed to discourage the use of a solicitor as the “winner” is generally unable to claim their legal costs beyond a minimal sum. It therefore encourages those who use it act as a “litigant in person” i.e. representing themselves and is designed for low-level disputes, up to a sum of £10,000 (except in cases of personal injury and housing disrepair).

A “Between the Parties” Bill of Cost was served, Points of Dispute and Replies sent. Negotiations on settlement of costs proved fruitless as Serco had deemed the claim for false imprisonment to be suitable for the small claims track and offered only fixed recoverable costs – capped at £850+VAT, plus disbursements.

As an agreement could not be reached, our Bill of Cost was sent for provisional assessment by the Senior Courts Cost Office. Master Haworth assessed the Bill on paper, and his initial view was that he agreed that a suitable allocation, in this case, was to the small claims track. We were surprised at this outcome. The small claims track allocates a case to be heard in the Small Claims Court. A venue at which the vast majority of cases involve minor disputes and where individuals are encouraged and, in many cases,  financially forced, to represent themselves.

In order to successfully overturn an oral assessment, a 20% movement of the costs in your favour must be achieved. Failing to achieve that swing means that you will also be liable for your opponent’s costs in the Cost Proceedings.

The potential financial implications of this claim for TV Edwards were mounting. But this case is about so much more than money, and we had to take the decision to appeal.

The Appeal

With the help of the exceptional Martyn Griffiths, TV Edwards appealed the oral assessment. The oral appeal was heard via video link on 18th August 2021 (no chance of Serco unlawfully detaining us)!

We were successful, and Master Howarth, as he has every right to do, changed his mind.

He agreed that such cases are not the types of case you would hear in small claims courts up and down the country, and if allocated to a track, he would have been assigned the case to the Fast Track.

We had won, Mr. Wilkins had won, or so we thought. But not quite. Serco were insistent. They chose to appeal the judgement.

The Final outcome

The appeal was heard on 13 January 2023. Serco was again contesting that the case should have been allocated to the small claims track and Master Howarth had unreasonably changed his mind.

Serco had instructed King’s Counsel for the appeal and was putting the full force of their financial resources behind the case.

Therefore we instructed the excellent PJ Kirby KC, whose expertise, gracious approach and manner were fitting for the case, incurring further costs that TV Edwards potentially might not recover.

Julian Overton, Managing Partner at TV Edwards, comments,

“Despite the financial implications, TV Edwards felt that come what may, we had to put every resource we could into defending the appeal. This was no longer about receiving costs for a case that we had worked hard on for over three years. It was about ensuring that people like Mr. Wilkins have a path to bring claims against the State and organs of it, when they have been unlawfully detained or otherwise harmed.

If Serco were successful in their appeal,  a precedent would have been set, and similar claims against the state for false imprisonment might simply not be taken on by solicitors firms. It is impossible to work on a case for three years and receive only fixed recoverable costs”.

Additionally, Mr. Wilkins’s damages of £3,000 would have been swallowed by the Legal Aid “Statutory Charge” and he would have effectively received no compensation for those four and half days where his freedom was unlawfully taken from him.

And without penalty, the government and their services would not strive to improve their systems, as a minimal payout plus less than £1000 in costs is not a true incentive to make improve their processes.

However, on 25th January 2023, Mrs. Justice Heather Williams DBE dismissed Serco’s appeal and upheld the decision on appeal that the case would have been allocated to the Fast Track.

A notable comment in her judgement says

1. Whilst it appears that the claimant valued the case at more than £3,000 when the claim was issued it was in any event at a figure under £10,000. Accordingly, the applicable starting point was that the SCT was the appropriate track. However, it is apparent from his judgement that the Master did take this as his starting point, before weighing the other factors, including the impact of complexity and the importance to non-parties.

This once again highlights the need for individuals to be able to have access to justice in cases like this – where, while the damages may be small – the points of law are far too complex for a layman to bring action against an entity with all the power (and money) on their side.

The importance to non-parties is a key factor too. While this appears to be a case between a law firm and a private company, in reality it was a fight to ensure the freedoms and access to remedies that every individual should enjoy were upheld.

Felix Couchman specialises in personal injury law and actions against the Police. He is regularly instructed in claims for malicious prosecution, wrongful arrest, false imprisonment, and Human Rights Act matters. To make an enquiry please call 020 3440 8000.