High Court refuses to award costs to ex-prisoner for slopping out

By Ann O'Loughlin

A High Court judge has refused to award a former prisoner the substantial legal costs, estimated at more than €1m, of his case over slopping out.

The refusal may have implications for some of an estimated 1,200 other slopping out cases in the pipeline.

Mr Justice Michael White refused to award costs to Gary Simpson against the State for reasons including his findings Mr Simpson had given some "untruthful and grossly exaggerated" evidence in regard to certain claims.

If the court had accepted all of Mr Simpson's evidence concerning his treatment, it would have regarded that as "torture" with consequent hugely adverse implications for the reputations of many people working in and managing the prison service.

While he appreciated lawyers for Mr Simpson put substantial work and engagement into the case and he had great sympathy for them, he could not "in conscience" award costs to Mr Simpson against the State.

Gary Simpson.

Nor would he make an order requiring Mr Simpson to pay the State's costs. Mr Justice White had not just been critical of Mr Simpson, he had also voiced criticism of the defendants in relation to a number of matters including access to showers for prisoners on 23-hour lock up and delays responding to their solicitors.

In a lengthy judgment last September, the judge found slopping out breached Mr Simpson's constitutional right to privacy and dignity but refused to award damages for that breach because of his finding some of Mr Simpson’s evidence concerning his treatment was either untruthful or grossly exaggerated.

He rejected a key claim that slopping out also breached his right not to be subject to inhuman and degrading treatment.

Mr Justice White heard submissions today concerning liability for the costs of the 30-day case.

James Devlin SC, for Mr Simpson, argued he was entitled to costs against the defendants as he had won a declaration of breach of constitutional rights. He proposed the court fashion a costs order that would do "justice" to both sides by granting Mr Simpson his costs, but making no order for costs of some hearing days which resulted in findings adverse to Mr Simpson.

Paul Gallagher SC, for the State, argued Mr Simpson's conduct and evidence disentitled him to any costs. The court found he gave untruthful and exaggerated evidence with potentially enormous adverse consequences for the reputations of many in the prison system and many hearing days had to focus on rebutting such claims, he argued.

In his ruling, Mr Justice White said it had been a very difficult case requiring many issues to be decided.

He understood the work and engagement put in by the lawyers for Mr Simpson concerning a range of issues that deserved to be raised.

However, definitive principles on costs make clear a plaintiff who engages in falsehoods and exaggeration can expose themselves to costs orders.

He had particular concerns in relation to litigation involving prisoners who are detained by the State and the courts have a duty to take seriously claims of mistreatment of neglect, to be wary of institutional abuse and "subjective truth" and to seek pieces of independent evidence and corroboration to deal with certain issues.

Mr Simpson's case and evidence "went way beyond that". His behaviour was "disgraceful" and "awful" in some aspects, especially in relation to claims made by him about other prisoners and senior managers. The court also felt "strongly" about how sanitation was dealt with for prisoners on 23-hour lock-up.

He could not "in all conscience" award Mr Simpson his costs but would not award costs against him in favour of the defendants.

Because Mr Justice White stressed his judgment was given in the particular circumstances of Mr Simpson’s imprisonment over eight months in 2013 - being under protection, doubled up in a single cell and 23-hour lock-up – the judgment’s implications for other cases remains unclear.

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