Claims arising from an unlawful arrest are among the more frequently pursued civil actions against the police, but they also present some of the more distinctive costs recovery challenges. Damages for a short period of unlawful detention can be relatively modest, while the legal work required to establish that an arrest was unlawful, and to progress a claim for wrongful arrest through to settlement or trial, can be considerable.  

For solicitors, and the costs lawyers and costs draftsmen supporting them, understanding where these claims tend to generate costs disputes, and how to structure a bill of costs to withstand scrutiny, is an important part of maximising recovery. 

What Makes an Arrest Unlawful 

An arrest by a police officer, made without a warrant, is only lawful where it satisfied the requirements of section 24 of the Police and Criminal Evidence Act 1981. This generally requires the arresting officer to have reasonable grounds to suspect the person arrested had committed, was committing, or was about to commit an offence, and to reasonably believe that arresting the person, rather than taking some less intrusive step, was necessary. Section 28 of PACE further requires that a person be informed of the fact of their arrest, and the grounds for it, as soon as is reasonably practicable; a failure to do so can render an arrest unlawful even where reasonable suspicion existed. 

Detention following an otherwise lawful arrest can also become unlawful, for example where the standard 24-hour detention limit is exceeded without proper authorisation, or where ongoing detention is no longer justified on the facts. Where any of these requirements are not met, the person arrested may have a claim for wrongful arrest and, for the period they were unlawfully detained, false imprisonment. 

Why Limitation Periods Matter for Costs Risk 

Claims for wrongful arrest or false imprisonment are generally subject to a six-year limitation period from the time of arrest, reflecting their basis in trespass to the person rather than negligence. Where the claim also involves an element of personal injury, such as an assault during the arrest, the applicable limitation period is generally three years instead, and where a claim is framed in terms of a breach of the Human Rights Act, the relevant time limit is considerably shorter, at twelve months less one day. 

Identifying the correct limitation period, and any personal injury element at the outset of a claim, is not simply a procedural formality. It has a direct bearing on costs risk: a claim brought under the wrong limitation assumption, or pursued after the relevant period has expired, is unlikely to succeed, and costs incurred pursuing a time-barred claim will generally not be recoverable from the police force in question. 

Funding an Unlawful Arrest Claim 

As with other civil actions against the police, claims for wrongful arrest may attract legal aid, subject to means and merits testing, or may be funded on a no-win, no-fee basis under a conditional fee agreement. Where a conditional fee agreement is used, the success fee is typically deducted from the client’s compensation rather than recovered from the police force, and solicitors will generally want to ensure the funding arrangement, and its implications for the client’s damages, is clearly documented from the outset, given how closely funding arrangements can be scrutinised if a costs dispute later arises. 

Recoverable Damages and the Proportionality Challenge 

Compensation claims for wrongful arrest typically include general damages for the loss of liberty itself, calculated broadly by reference to the length of detention, alongside any special damages for financial loss, and, in some serious cases, aggravated or exemplary damages where the conduct of the police officer involved was particularly high-handed. Where a person was detained for only a short period, perhaps a matter of hours at a police station before release, the resulting damages award can be modest, even where the underlying legal and evidential work required to establish that the arrest was unlawful was substantial. 

This gap between the value of the claim and the costs incurred pursuing it is one of the most common battlegrounds at detailed assessment. Police forces, as well-resourced and experienced paying parties, frequently raise proportionality as a central point of dispute, arguing that costs claimed are disproportionate to the modest damages ultimately recovered. A costs lawyer or costs draftsman advising a bill of costs in this area needs to be alive to this argument from the outset, rather than only when a point of dispute is served. 

Detailed Assessment: What Tends to Be Disputed 

Several categories of work in unlawful arrest claims tend to attract particular scrutiny at detailed assessment: 

• Time spent analysing the arrest under PACE, including reviewing whether the reasonable suspicion and necessity tests were satisfied, and whether section 28 was complied with, which paying parties may argue was excessive relative to the value of the claim. 

• Correspondence and disclosure requests, including obtaining custody records, body-worn video, and other police disclosure, which is often essential to proving the claim but can be time-consuming to obtain and review. 

• Engagement with the police complaints process, where a parallel complaint has been pursued alongside the civil claim, since paying parties may dispute whether time spent on the complaint itself was reasonably incurred as part of the litigation. 

• Success fees and funding-related costs, where a conditional fee agreement has been used, particularly if the risk assessment underpinning the success fee is challenged as unjustified given the apparent strength of the underlying claim. 

A bill of costs that clearly separates and justifies these categories of work, with a contemporaneous record of why each step was necessary, tends to be considerably more resilient to challenge than one that simply totals the time recorded without that context. 

Practical Points for Unlawful Arrest Costs Recovery 

For solicitors and costs practitioners handling unlawful arrest claims, a few habits tend to improve costs recovery outcomes: 

• Confirm the correct limitation period, and any personal injury element, at the earliest possible stage, and record this assessment on file. 

• Keep a clear, contemporaneous record of why particular disclosure requests, or steps under the police complaints process, were necessary to the civil claim. 

• Consider proportionality throughout the claim, not only once a bill of costs is being prepared, since decisions taken early in a case are often the ones scrutinised most closely later. 

• Where a claim is funded under a conditional fee agreement, ensure the risk assessment supporting the success fee is properly documented at the time it is made, rather than reconstructed retrospectively. 

Speak to greener Costs Today. 

If you are a solicitor handling a claim for wrongful arrest or false imprisonment and would like support with funding advice, a costs budget, or preparing a bill of costs for detailed assessment, contact Greener Costs’ costs lawyers and costs draftsmen on 01204 263047 or info@greenercosts.co.uk. 

FAQs 

How long do I have to bring a claim for wrongful arrest?  

Claims for wrongful arrest and false imprisonment are generally subject to a six-year limitation period from the time of arrest, reduced to three years where the claim includes a personal injury element, and twelve months less one day for a related Human Rights Act claim. 

Can costs be recovered even where damages for unlawful arrest are low?  

Generally, yes, provided the costs claimed were reasonably and proportionately incurred. However, a significant gap between modest damages and higher costs is a common trigger for a proportionality challenge from the police force at detailed assessment. 

What is the most common costs dispute in unlawful arrest claims?  

Proportionality is generally the most frequently raised issue, with paying parties arguing that costs claimed do not reflect the modest value of the underlying claim, particularly where the period of detention was short.