Berry v British Transport Commission: CA 1961

The plaintiff had been prosecuted by the defendant for pulling the emergency cord on a train without proper cause. After acquittal and payment of part of her costs, she sued for malicious prosecution, saying the damages were the part of her defence costs not awarded. The defendant replied that this was not claimable loss.
Held: The award of costs included no element of compensation, and that therefore her claim stood.
Devlin said: ‘the rule of the law of damages that if costs were awarded in hostile civil litigation nothing beyond the taxed amount could be recovered by the successful party from the unsuccessful party rested on the presumption that the award of costs (as between party and party) gave compensation for the cost of litigation so far as the law allowed, and the reason for the rule was that the law could not permit the question of the amount of costs to be litigated a second time between the same parties in new proceedings; it was however a fiction that costs taxed between party and party were the same as costs reasonably incurred and the law should recognise that an assessment of damage and a taxation of party and party costs were two different things. The rule should not be extended to criminal cases, because the principles governing the award of costs in civil and criminal cases were not the same; for in criminal cases a successful defendant had no prima facie entitlement to an award of costs, as the prosecution was brought in the public interest, and an award of costs need not be directed to quantifying the damage and indemnifying the accused according to a conventional measure.’
A charge of a statutory offence punishable only by fine would not support an action for malicious prosecution unless the charge was such as to injure the ‘fair fame’ (that is, was necessarily and naturally defamatory) of the person charged.


Devlin LJ


(1962) 1 QB 306, [1961] 3 All ER 65, [1961] 3 WLR 450, 105 Sol Jo 587


Railways Act 1868


England and Wales


Appeal fromBerry v British Transport Commission QBD 1961
Although in civil cases extra costs incurred in excess of the sum allowed on taxation could not be recovered as damages, the Court was not compelled to extend that rule (based as it is on a somewhat dubious presumption) to criminal proceedings in . .

Cited by:

ComparedUnion Discount Company Ltd v Robert Zoller and Others, Union Cal Ltd CA 21-Nov-2001
The claimant had incurred costs in defending an action brought by the respondents in breach of an exclusive jurisdiction agreement. They appealed a judgement against them.
Held: The claim for the costs must succeed. The jurisdiction in which . .
CitedGregory v Portsmouth City Council CA 5-Nov-1997
The plaintiff councillor had been disciplined by the defendant for allegations. The findings were later overturned, and he now sought damages alleging malicious prosecution.
Held: The categories of malicious prosecution are closed, and it was . .
CitedBotham v The Ministry of Defence QBD 26-Mar-2010
The claimant had been employed by the MOD. He was summarily dismissed for gross misconduct, and he was then placed on the list of persons unsuitable for work with children. He succeeded at the Tribunal in a claim for unfair and wrongful dismissal. . .
CitedGregory v Portsmouth City Council HL 10-Feb-2000
Disciplinary proceedings had been taken by the local authority against Mr Gregory, a council member, after allegations had been made that he had failed to declare conflicts of interest, and that he had used confidential information to secure a . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Costs, Damages

Updated: 28 April 2022; Ref: scu.180971