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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Fleming v Sussex Police Force [2004] EWCA Civ 643 (04 May 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/643.html Cite as: [2004] EWCA Civ 643, [2004] Po LR 251, [2005] 1 Costs LR 1

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(HIS HONOUR JUDGE KENNEDY QC)

		Royal Courts of Justice Strand London, WC2A 2LL
		4 May 2004

Tuesday 4 May 2004

1. LORD JUSTICE POTTER: This appeal is the continuation of an unedifying and bitterly fought dispute between the claimant and the Sussex Police which was tried before His Honour Judge Kennedy and a civil jury over some seven days leading to a verdict and an award of damages in the claimant's favour in the sum of £5,025 on 2 April 2003 in respect of a major part of the claim. However, the claimant was not wholly successful and the appeal in this case relates, not to the verdict of the award as such, but to the order for costs later made by the judge following lengthy written submissions by the parties. On 12 August 2003 the judge ordered that, upon an issue of misfeasance (which was part of the original claim but later struck out by consent prior to trial) there should be no order as to costs as between the parties but that otherwise the defendant was to pay the claimant's costs of his claim, such costs to be the subject of detailed assessment. The judge's reasons appear set out in a perfected judgment dated 30 September 2003.
2. The action arose out of an incident at Gatwick Airport on the morning 6 January 1999. The claimant had gone there to meet his girlfriend, Angela Shepherd, and their daughter, Jakita, who were returning from Canada on a flight which was delayed. After the claimant had been waiting around for some time, he was approach by two police officers, PC Bold and PC Jeffs, who were on duty at the airport, following which an incident took place which led to the claimant's arrest. He was taken in a car to Gatwick Police Station where he remained for nearly six hours. Upon his arrival he complained of being assaulted by the officers, and at 17.31 pm was himself charged with assault on the officers and also with an offence under section 5 of the Public Order Act. A DNA sample was taken. The claimant was released at 18.05 pm and bailed to appear before the Crawley Magistrates on 18 February 1999. However, on 12 February 1999, solicitors retained by him received a letter from the Crown Prosecution Service saying that the charges would not be proceeded with, the CPS having discontinued the matter.
3. The claimant made the conduct of the two officers the subject of a formal complaint to the police and, following the investigation and rejection of that complaint, he commenced proceedings.
4. The particulars of claim dated 14 December 2001 alleged: (i) wrongful arrest, assault and false imprisonment; (ii) malicious prosecution on the grounds that the circumstances which the police said led to his arrest (namely that he had been shouting and abusive and had himself assaulted PC Bold prior to his arrest) were fabricated as the police were well aware; (iii) misfeasance in public office in that the DNA samples which were taken from the claimant were not destroyed on dismissal of the prosecution as the claimant had been told they would be, but only 15 months later when they were deleted from the Police National Database.
5. In addition to a claim for compensatory damages, there was a claim for aggravated and exemplary damages on the grounds of the alleged arbitrary and oppressive conduct of the police officers.
6. In broad terms, the differing accounts of events were as follows. The claimant said that he had been approached by the two police officers and asked his business. He had told them why he was at the airport. However one of the officers pulled out his radio and spoke into it and, following the reply received, nodded his head, upon which the claimant was pushed in the back from behind and caused to stumble forward as a result of a shove from the second officer. The first officer said that they were from the Sussex Police and asked the claimant his business. The claimant moved away and carried on walking in order to avoid a confrontation, no warrant cards having been produced at that stage. When he arrived at the exit and began to open it he was grabbed from behind, an arm was put round his neck and he was pulled sideways away from the door. Both officers grabbed him, he lost his balance and fell to the ground. When he got up and had been directed to a row of chairs he was forced into a kneeling position where he felt a blow to his back, his thumb was forced up behind his back and his hand was bent and twisted. He turned and said to the officer "You're breaking my fingers", and the officer released his grip but kept hold of his arm. As a crowd began to gather the claimant shouted that he had done nothing wrong and was just there to collect his girlfriend and the officers told the crowd that the claimant was under arrest and they should move along.
7. He drew an officer's attention to the fact that his watch had fallen on the ground and one of the officers deliberately stood on it before picking it up and placing it in his pocket. He was then shown a warrant card and told that he was under arrest for assaulting a police officer and for making a noise in a public place. He was taken back to the police station in handcuffs, where he was dealt with as already described.
8. The defence was that the officers had received a report that the claimant was loitering in the area of the airport. He had been stopped, shown a warrant card, informed that they were police officers and asked what he was doing there. The claimant asked if he was under arrest and he said that, if he was not, he was not talking to them. He then began to walk away. After further questioning the claimant refused to cooperate and became agitated, raising his voice. He was warned that if he did not stop and speak to the officers he would be arrested, at which he started swearing. A crowd gathered and he became agitated and, after being warned that he would be arrested if he did not calm down, he had refused details and started to move away. Upon a move to prevent him, he struck out at PC Bold, pushing him in the chest and causing him to move backwards. The claimant said he was getting angry and tensed his body. At that the officers reasonably suspected he was engaging in offensive conduct within the meaning of section 5 of the Public Order Act. PC Bold arrested him and took hold of his right arm, informing him he was under arrest for the offence under section 5 and for assaulting PC Bold. The claimant struggled after his arrest but was overpowered and handcuffed and then taken to the police station. The relevant dates in relation to the taking, retention and destruction of the DNA sample were admitted but misfeasance denied. Otherwise the claimant's allegations were denied.
9. Following the summing-up of the judge, a list of questions as to the disputed matters of fact were put to the jury. Their answers involved the following findings. The claimant was shouting aggressively and swearing and was warned to stop doing so otherwise he would be arrested. He continued to shout aggressively and swear, however he did not push PC Bold in the chest. He was told he was under arrest at the time hands were laid on him and given the reasons, but the jury did not state what those reasons were. However, on the basis that both parties asserted that both unruly behaviour and assault were relied on, it is likely that the jury found that the reasons were two-fold.
10. The jury went on to find that PC Bold had pushed the claimant from behind at the time he was talking to PC Jeffs. PC Bold had also deliberately twisted the claimant's finger or thumb without good reason. The other allegations of assault by PC Bold and the allegation that he deliberately stood on the claimant's watch were rejected. The jury found that the police had no honest belief in the charge of assault which was brought against the claimant, though they had an honest belief in the charge of disorderly behaviour brought against him.
11. The jury awarded damages for the first assault (ie the push in the back from behind by PC Bold) of £25. In relation to the second assault (ie the deliberate twisting of the claimant's finger or thumb) the jury awarded damages of £1,000. No finding was made or damages awarded in respect of a charge of false imprisonment relating to the detention of the claimant. The parties are agreed that it was implicit that, because the jury accepted that there were grounds for the arrest of the claimant under section 5 of the Public Order Act, the charge of false imprisonment was not made out. The jury found the charge of malicious prosecution to be proved and awarded damages of £2,000. They also made an award of aggravated damages in relation to the conduct of the police of £2,000, making a total award of £5,025.
12. The jury was not concerned with the claim for misfeasance in public office because this had been struck out by consent on 3 July 2002. That came about in this way. Paragraph 5(b) of the particulars of claim alleged that the DNA samples had not been destroyed once the prosecution was dismissed, despite the claimant being told "on or about the 15th February 1999 by an officer believed to be Acting Inspector Charnock or similar of Gatwick Police Station that they would be." By paragraph 10 of the defence it was admitted that the sample was only destroyed in May 2000, but stated that:

"The Defendant is currently unable to admit or deny the allegation that the Claimant was told by a police officer that the sample would be destroyed until that officer has been better identified by the Claimant."

It went on to state that whatever the claimant was told by one of the defendant's officers, it is denied that there was any misfeasance in public office or that the facts alleged amounted to facts on which it could be concluded that there was.

13. By paragraph 3 of the reply, the claimant pleaded that he would aver at trial that the response of the defendant was "indicative of the evasive and obstructive way in which [the] Defendant by way of his officers has been conducting himself. The response does not treat the Claimant's action with any seriousness that is contemptible." It pointed out that on 1 February 2002, in response to the defence, the claimant's solicitor had telephoned Gatwick Police Station asking to speak to Inspector Charnock and had been told that he was now based at Horsham Police Station but was away on a rest day. That action had taken no more than 10 minutes. It was pleaded that "there is no reason why the Defendant by way of his officers/adviser could not have made this simple and proportionate enquiry before their letter of 30th January 2002 and/or settling the Defence." It was said that the claimant would rely upon that evasiveness as an aggravating feature in relation to the defendant's conduct and reasonableness in the litigation.
14. By a request for information of the defendant's statement of its inability to admit or deny that the claimant had been told by a police officer that the sample would not be destroyed until the officer had been better identified, the claimant asked whether the defendant had now identified the officer believed to be Acting Inspector Charnock and on what date. He also asked what was the defendant's case in reply to paragraph 5(b) of the particulars of claim, which stated that the claimant had been told by the officer believed to be Inspector Charnock that they would be. In the course of a long and argumentative answer, the defendant pleaded that it had not been possible to understand what the claimant meant by the words "Acting Inspector Charnock or similar", and that it was neither reasonable nor proportionate for the defendant to seek to identify every officer who would be "similar", and to take a statement from them. It was also stated that the defendant would apply to strike out paragraph 3 of the reply relying on any evasiveness over this issue as going to aggravated damages, and that the costs of making and answering requests for further information should be awarded to the defendant a disallowed. Nonetheless the defendant did answer the request, saying that he had now identified Acting Inspector Charnock as an officer at Gatwick Police Station but that officer had no recollection of telling the claimant that his DNA sample would be destroyed. Regrettably, it seems that the flavour of these exchanges was well illustrative of the spirit in which this litigation was conducted. When, on 3 July 2002, paragraph 3 of the reply was struck out, together with the claimant's claim for misfeasance in public office, the costs of the defendant's application were reserved.
15. As already indicated, following trial, the judge ordered that there be no order as to the costs on the issue of misfeasance but that the defendant was to pay the remainder of the claimant's costs.
16. The judge made his costs order having received and considered lengthy written submissions from the parties.
17. The claimant's skeleton argument ran as follows. His primary submission was that he had been successful in the action in recovering over £5,000 by way of damages. While it was acknowledged that he did not succeed on all aspects of his case, the general rule that costs should follow the event should be followed. He was the party who was successful overall in the litigation and had had to come to court to recover anything, the defendant having at no stage paid any money into court nor made any offer greater than the sum recovered by the claimant, despite receiving approaches for settlement from the claimant.
18. The claimant's secondary submission was that, if in the light of CPR Part 44 the court was of the view that there should be some discount for the costs of the claimant in relation to matters on which he failed, then he should recover not less than two-thirds of his costs on the broad basis that he had succeeded on two of the civil torts out of the three alleged by him, namely assault and malicious prosecution. Even though he had lost on the false imprisonment aspect of the claim, the trial had not been significantly lengthened thereby since, although the jury had found that there were grounds for arrest under section 5 of the Public Order Act, both officers had given as the trigger for the arrest the assault alleged to have been committed by the claimant on PC Bold which the jury had rejected. Thus, although the claimant had lost on the claim for false imprisonment, the jury found that the key trigger which the police alleged to be reason for the arrest had been fabricated.
19. So far as the claim for assault was concerned, again the time taken for trial was not significantly affected by the allegation of the claimant that he had been hauled to the floor, struck without good reason or handcuffed without good reason while in the police car. The same was true of the allegation that the watch was broken deliberately. It was inevitable that the immediate background to, and full circumstances of, the incident and what led up to it would be explored in any event, and the fact that certain aspects of the claimant's case failed by reason of the jury answers did not affect the fact that the claimant had succeeded in obtaining substantial damages for assault and for malicious prosecution based on a false reason made up by the officers and stated to be the operative cause of the arrest and the subject of the malicious prosecution. So far as malicious prosecution was concerned, it was the most serious tort alleged and the claimant had been successful in respect of the prosecution for assault, the jury showing their disapproval of the officers' conduct by awarding £2,000 by way of additional aggravated damages, having been instructed by the judge that such damages were discretionary.
20. The claimant also invited the judge to approach the matter on the broad basis that the jury were satisfied that the police had lied in their notebooks, their civil statements, and in the course of the police investigation, but most significantly had committed perjury in the proceedings. The claimant had been obliged to bring the proceedings to obtain justice, having failed to obtain any satisfaction through the independent complaints procedure, let alone any apology. The only apology received in the course of the proceedings related to the non-destruction of the DNA and came only after intervention of the judge. Complaint was also made of delays in disclosure, in particular in relation to the disciplinary proceedings, as illustrative of the reluctance of the police to come clean.
21. Finally, reference was made to the question of offers to settle without recourse to litigation. The court was referred to correspondence which revealed that repeated offers of settlement had been made by the claimant prior to proceedings in the face of the firm refusal by the defendant to offer anything. On 2 January 2002 the claimant made a Part 36 offer to settle for £11,500, reduced to £10,000 on 16 July 2002. On 31 July 2002 the defendant's solicitors wrote, stating that the offer was rejected and there would be no counter-offers. On 13 March 2003, having been asked for a statement of the defendant's position, the defendant replied that the defence was maintained. However the defendant would be prepared to agree to the claimant discontinuing his action with no order for costs provided notice of discontinuance was received by 20 March 2003.
22. There was a further attempt to settle during trial in that, following the decision of the jury on liability, on 31 March 2003 the claimant made an oral offer to settle for £5,000 plus reasonable costs to be taxed if not agreed, which was put in the form of a formal Part 36 letter at 4.00 pm that day before the jury were sent home. The defendant riposted with an offer made out of office hours to settle for the amount of £3,000 on the basis that each side bore its own costs. The claimant submitted that, in those circumstances, he should in any event have the costs of the final day of trial.
23. The defendant's submissions on costs were as follows. First there was broad submission that, looked at overall, each of the parties was as successful and unsuccessful as the other, given the rejection by the jury of various aspects of the claimant's story. Thus there should be no order for costs, alternatively an order that the defendant pay no more than 50 per cent of the claimant's costs. There were more detailed submissions which have been repeated before us under three heads. First, it is said the claimant unreasonably pursued certain allegations. The jury found that his behaviour in becoming excitable and abusive was bad enough to justify his arrest and his claim for false imprisonment thus failed. Similarly he exaggerated the extent of police violence in that he failed to establish that he was pulled round the neck and dragged to the ground, struck in the back or had his watch deliberately broken.
24. Second, it is submitted that much time was wasted both on paper and during trial on investigating whether or not the claimant was, as the police officers had said, pointed out to them as suspicious by somebody at Gatwick Airport. This point, which Mr Bishop for the appellant has called "the identification issue", was unrelated to the issues on which the claimant succeeded and the claimant should have accepted from the outset that his arrest was lawful. Because of the claimant's unwarranted allegation of false imprisonment, the earlier events had to be explained by the police and this added significantly to the length of the trial.
25. Third, it is submitted that the conduct of the claimant via his solicitors has been such as to increase the temperature and the cost of the litigation throughout, by repeatedly threatening the defendant with return to court in respect of pettifogging requests for disclosure and particulars. There are also complaints of late discovery and that on two or three occasions the claimant sought to introduce documents into the proceedings by way of cross-examination which had not been disclosed and whose relevance was questionable.
26. Finally, it is submitted in respect of the "reserved costs" order that the claimant should in any event pay the defendant's costs of the claim for misfeasance in public office which, albeit the defendant had been at fault, never stood any chance of success, a necessary ingredient of the tort being that the claimant had suffered damage. No damage had been suffered and indeed it emerged that the claimant's motive in pursuing the claim was only ever to receive an apology. Similarly, paragraph 3 of the reply, which was struck out at the same time, was incapable of giving rise to a claim for aggravated damages in relation to the claims in tort.
27. In his judgment on costs, the judge paid tribute to both sets of submissions as admirable and expressed his gratitude for them. At paragraph 3 of the judgment he encapsulated his view of the overall merits and pattern of the trial as follows:

"The Claimant failed on his allegation of False Imprisonment. The jury presumably must have thought that the officers were justified in thinking that Mr Fleming looked and was acting in a suspicious manner and were justified in approaching and stopping him initially. Even if their purported reason for arresting him and taking him to Gatwick Airport Police Station was not so justified. The jury found that the officers had twice used unreasonable force in doing so. Two assaults. Then, Malicious prosecution for an alleged assault against one of the officers that he had not committed, also in the process of the arrest at the airport. The police were therefore initially justified, used excessive force in dealing with Mr Fleming but then, very regrettably, went on to prosecute him for what he had not done, knowing that to be the case."

28. The judge went on to refer to the nature of the claimant's behaviour. He rightly stated that his view of the claimant and his behaviour as formed in the course of the trial was relevant as to costs. The claimant's reaction to being approached had been rather extreme. However, he was finally arrested for an assault which the jury found he had not committed. The judge stated that, balancing all the detailed submissions (which he did not repeat) would help him to look at the several issues tried and decide "whether they can be looked at separately or whether all had to be heard, in reality, to try any fairly"; also at which of the parties had tried to avoid coming to court. He summarised the matter, saying that on the one hand the police officers had honestly thought that the claimant was suspicious and the claimant had over-reacted to the police approach. He could thus have been arrested for failing to explain his presence at the airport or for disorderly behaviour. However, he was arrested eventually for an assault which he had not committed and was himself twice assaulted in the process. At the police station he had not been treated properly and, although released, had been charged on false evidence. Although he had telephoned the police promptly when the charges were dropped, asking to have his DNA destroyed (as was his right), that had not been done at once and the whole procedure was little short of a shambles thereafter. The claimant had only resorted to litigation after unsuccessfully using the police complaints procedure which the jury found by implication had wrongly exonerated the arresting officers. Although his particulars of claim included a claim for misfeasance concerning DNA, that claim added very little to the case or its costs, albeit that it was misconceived and disposed of by consent. At no stage after trial had the police or their advisors thought fit to apologise over anything which had happened, although the principal custody officer had done so in court, too late to be of other than marginal effect. At no stage did the defendant offer to settle the case.
29. These were plainly matters relevant to the discretion of the judge in deciding whether to order that the costs should follow the event or whether to make an issues-based order which would defeat the claimant's right to recover his full costs of the action. It is the final paragraphs of the judgment which give rise to the main point of substance on this appeal. They read as follows:

"17. Applying the Overriding Objective to it all - as I must - it struck me forcibly that certainly one, probably both of these officers were too easily prompt falsely to accuse and, in consequence, falsely to arrest, someone that they thought might be at the Airport for no good reason and who was behaving awkwardly. But perjury is not a legitimate tool of their trade.

18. The jury thought their conduct deserved Aggravated Damages. That is significant. Probably the Court, and certainly they, would think justice ill-served if [the claimant] did not receive that money, if they had known what I do of the Police conduct of the case as a whole, so admirably laid out for me now by both Counsel. He can only receive the damages the jury thought he deserved if the Police pay his full costs. They always knew that. They refused to compromise. My problem is essentially that, had the Police appreciated all the matters I have outlined - not excluding the last - they would have realised that, should Aggravated Damages be awarded, particularly for what was the effect of a perjured arrest, the Court would be more anxious to see that the Claimant received at least a substantial part of his compensation, rather than balancing somewhat tactical issues, whether as to costs or otherwise, and whether under Part 44.3 or not.

19. I should hope that the Claimant's lawyers are not going to put in a bill to the LSC for the misfeasance issue, either.

20. I should like to know the outcome on that, eventually.

21. In other proceedings (in particular in Family Cases) the Court of Appeal has emphasised that decisions regarding financial matters must take account of the overall outcome of any order, including the incidence of costs upon either party. These principles are now but examples of a system of awarding (or refusing) costs which, under the CPR, apply across the board to all forms of litigation. In the circumstances, I have not the slightest doubt that the Defendants should pay the claimant's costs in full, subject to detailed assessment. I so order."

30. Upon this appeal, the defendant repeats and elaborates its submissions made below and submits that there should either have been no order for costs, alternatively that the defendant pay a maximum of 50 per cent of the claimant's costs, the claimant paying the defendant's costs of the issue of misfeasance and of the defendant's application to strike out his reply (that application being a matter raised in the defendant's written submissions but not dealt with by the judge in his judgment). The additional and significant point argued for the defendant is that, in the paragraphs 18 and 21 of the judgment quoted above, the judge appears to have applied as a key consideration in making the order his view that it was desirable to preserve intact for the claimant, a legally assisted litigant, the amount of damages awarded by the jury and not to reduce them by the impact of an adverse costs order of the kind sought by the defendant. It is submitted that, in taking that view, the judge misapplied CPR Rule 44.3 by misunderstanding or rejecting the true, and in part disciplinary, rationale of issue-based or "percentage" costs orders. I shall deal with the individual grounds of appeal in order.
31. It is first submitted that the judge's approach was flawed by his failure to appreciate that the claimant was lawfully arrested, in that he referred to the arrest as being unlawful on several occasions in his judgment at paragraphs 3, 4, 10 and 17. This seems to me a thoroughly bad point. First, the judge does not state that the arrest was unlawful in the passages referred to. It is clear from later passages in his judgment that the judge appreciated and accepted that the claimant was loud and abusive once approached and that there were grounds for his arrest under section 5 of the Public Order Act. That is why the allegation of wrongful arrest and false imprisonment failed. In the passages identified by the defendant in various paragraphs of the judgment, the judge was plainly referring to the evidence of the officers, in particular PC Bold, that while there were grounds to arrest the claimant for his loud and abusive behaviour, it was the alleged assault by the claimant on PC Bold which was the trigger for the arrest and which was not justified. That is clear from paragraph 3, paragraph 4 ("he was, of course, undoubtedly arrested, finally, for the assault that the jury found he had not committed") and paragraph 10 ("he could have been arrested for failing to explain his presence at the Airport and/or for disorderly behaviour, but he was arrested eventually for the assault he had not committed. He was twice assaulted in the process.").
32. It is complained that the judge failed properly to exercise his discretion in the light of the mandatory provisions of CPR Rule 44.3. It has been acknowledged by Mr Bishop for the appellant that, in seeking to overturn the discretion of the judge as to costs, it is incumbent upon him to satisfy the test stated by Chadwick LJ in Johnsey Estates (1990) Ltd v Secretary of State for the Environment [2001] EWCA Civ 6535, namely that the judge "erred in principle, took into account matters which should have been left out of account, left out of account matters which should have been taken into account; or reached a conclusion which is so plainly wrong that it can be described as perverse." See also Summit Property Ltd v Pitmans (A Firm) [2001] EWCA Civ 2020 (an appeal on costs) per Longmore LJ at paragraphs 16-17 and per Chadwick LJ at paragraphs 26-29. In both cases, this court made clear that the Court of Appeal must exercise self-restraint in substituting its views for the views of the judge who has the feel of the case he has tried, as well as knowledge of its progress and nuances of detail which are not suitable for investigation on an appeal concerning costs.
33. In respect of the judge's exercise of discretion I can say at once that, whilst there must be great reluctance to re-examine a decision of the judge on costs, particularly in a case of this kind, I do think that the judge took into account a matter which should have been left out of account.
34. In the light of the content of paragraph 21 of his judgment, it seems clear that, in coming to his decision, the judge was influenced by what he understood to be the position in family cases, namely that decisions of the court as to financial matters as between the parties should take into account the incidence of an order of costs and the effect upon the parties' means. That may well be so in family cases and in relation to financial issues between the parties to a marriage. However, it is not necessary for us to examine the extent to which that is so.
35. I do not accept, as the judge appears to have considered, that such an approach is one which applies, or should be applied, across the board in litigation in relation to other issues and other divisions of this court. The rationale in the more flexible deployment of the "issues" approach which has been encouraged to develop since introduction of the CPR is the necessity to discourage litigation in respect of inessential issues, which are either bound to fail, or are irrelevant to the central and essential issues necessary to be decided between the parties in the resolution of the dispute. The "issues" approach may be reflected in an order for costs in respect of particular issues for identification and quantification upon later detailed assessment, or in the preferable course of making an order for recovery of a percentage of the award of costs of the successful party based on the judge's overall estimate of the time wasted upon unnecessary issues. It is based upon the perceived need for a quasi-disciplinary measure in respect of the fair and expeditious conduct of the litigation. Nonetheless the starting point is still an order for costs in favour of the successful party: see CPR 44.3(2). Put more generally, the successful party is the party who has really won at trial, by establishing the essentials of his case and his rights to a particular remedy or remedies sought, the time spent on the issues being broadly that reasonably necessary for the exploration and determination of the dispute.
36. The principles are too well known to require to be set out in detail. The pre-CPR working rule to be found in the judgment of Nourse LJ in Re Elgindata Ltd (No 2) 1 WLR 1207 was modified by the observations of Woolf Lord in AEI Rediffusion Music Ltd v Phonographic Performance Ltd to the effect that it is no longer necessary for a party to have acted unreasonably or improperly to be deprived of his costs on a particular issue on which he has failed. Those observations have been taken up and further developed in a number of decisions under CPR 44.3 which now constitutes a code of the principles to be applied, but still leaves it as essentially a matter for the discretion of the judge whether to apply the general rule or make an issues-based order, having regard to the considerations set out in CPR 44.3(3) to (5): see the White Book 2004 at page 1066 and the comment at paragraph 44.3.1 at pages 1067-8 and the authorities there cited.
37. None of the considerations enumerated in CPR 44.3 justifies taking into account the size of the defendant's award of damages as a reason for the court to decline to make an issue-based order which otherwise ought to be made, simply on the ground that to do so would defeat the claimant's recovery in the action. In the ordinary run of litigation as it seems to me, at least outside the confines of financial claims and family or matrimonial disputes (as to which I make no further observation), such a consideration is not relevant when considering whether or not the litigation in the course of which the order has been made has been unreasonably conducted or unnecessarily prolonged. I would only add that it seems to me wrong also to refer to the expectations of the jury, as the judge did, at paragraph 18 of his judgment, when referring to the fact that the claimant could only receive the damages the jury thought he deserved if the police paid his full costs. The incidence of costs is a matter for the judge (and not the jury) to decide after the trial is over.
38. If the judge's reference to the jury's views of the justice of the case had been no more than a rhetorical flourish, I would not have paid substantial attention to it. But it appears that it was more than that, being a stepping stone en route to the judge's decision. In my view, the jury's view should not have been taken into account in that way. It is certainly no part of the criteria laid down in CPR 44.3. That being so, it is open to this court to review the matter and apply its own discretion based on the submissions of the parties.
39. Despite what I have said, I do not consider that we should disturb the decision of the judge. It is time that the judge accepted that the claimant had failed on the issue of false imprisonment because there were in fact grounds for his arrest for a Public Order Act offence; also that there were a number of respects in which he had exaggerated the actions of the police. However the judge also stated his clear view that, applying the overall objective to the whole case, it struck him forcibly that the officers were too prompt falsely to accuse and, in consequence, falsely to arrest, the claimant as someone who they thought might be at the airport for no good reason. The judge also took into account what appeared to him to have been perjury on the part of the police.
40. As to the claimant's unsuccessful cause of action for false imprisonment, Mr Bishop has conceded that the simple pleading of the case on the basis of that cause of action did not itself add to the substance or the background of issues which had to be explored at trial. Thus, there was no discrete issue capable of identification which, if omitted, would significantly have reduced the length of trial or, by corollary, which lengthened it simply by its presence. Mr Bishop conceded that, if the claimant had confined his case to the causes of action and allegations on which he succeeded, the same number of witnesses would have been called. He also said that his own experience of trials of this kind in Sussex indicated that with allegations of the kind being made tried before a jury, a proper estimate would have been for a five-day trial. In the end, the gravamen of his complaint was not that the issues were discrete or that unnecessary witnesses had to be called or disclosure made, but that (i) if the claimant had not pursued allegations on which he was ultimately disbelieved, and (ii) if his counsel had not pursued in relentless detail cross-examination of the police witnesses upon the identification issue, the trial would have been much shorter.
41. The identification issue involved both officers being cross-examined at great length about who had originally pointed out the claimant to them and whether it was their investigation into immigration offences which had led to their being interested in the claimant. It is said by Mr Bishop that the issue added greatly to the length of the trial, and he points out that 52 out of the 91 pages of transcript of cross-examination of PC Jeffs and 17 out of the 60-odd pages of the cross-examination of PC Bold were devoted to that issue.
42. One can see the strength of those observations in principle. However, as Mr Bishop was also obliged to accept, in explaining the overall incident and challenging the good faith and credit of the police in relation to the allegations on which the claimant was successful, a good deal of the cross-examination was justified in any event. None of Mr Bishop's arguments advanced to the judge seem to have appealed to him, and in my view the judge was in the best possible position to judge them. I do not feel qualified, on examination of the transcripts, to take a different view.
43. Leaving aside all question of the effect upon the amount of the claimant's recovery, I do not feel able to put myself in the position of the trial judge; nor am I disposed to differ from his overall assessment. Again I feel unable to say that there was any discrete issue or matter pleaded which added sufficiently to the length of the trial to necessitate displacing the prima facie rule that costs should follow the event.
44. As to the allegation of misfeasance, the judge dealt with that matter as a discrete issue on the basis of the submissions before him and made an order that there should be "no order" as to costs. It is correct that, in the ordinary way, one would have expected an order in favour of the defendant. However, the judge had before him a good deal of fractious correspondence leading to a consent order sensibly made. He also took into account the background of the case and the "shambles", as he put it, of the non-destruction of the DNA samples. I consider he was entitled to make no order as to costs upon his overall view of the merits of the case and taking into account the behaviour of the parties on each side. The costs were in any event not substantial.
45. As to the striking out of the reply at the same time, its content was inextricably bound up with the issue of misfeasance and the strike-out involved minimal additional costs. Although the judge did not deal with it specifically as an issue it was, in my view, an omission so small as not to be appropriate for appeal.
46. In all the circumstances, for the reasons I have stated, I would dismiss this appeal.
47. LORD JUSTICE MANCE: I agree.
48. LORD JUSTICE JACOB: I also agree.

(Appeal dismissed; the appellants do pay the respondent's costs of the appeal, excluding the costs of and in relation to the letters of 15 September, 17 September and 26 November, such costs to be payable on the standard basis and subject to detailed assessment).