Powell & Ors v The Chief Constable of West Midlands Police  EWHC B12 (Costs)
The Claimants sought to bring an action following the death of Mikey Powell whilst he was in police custody. The Police were called because Mr Powell had deteriorating mental health problems; the Police car arrived and deliberately drove the car at Mr Powell who was struck by the car, rolled onto the bonnet and the roof and fell onto the road. Mr Powell was then struck with a baton and sprayed with CS gas, restrained on the ground, handcuffed and placed in a van.
The Coroner’s Court Jury found that Mr Powell died in the van of positional asphyxia. The Defendant accepted the verdict of the Jury, and the case was settled on payment of £300,000.00 for damages. Following payment of the damages, the Bill of Costs lodged by the Claimants totalled £1,603,080.00.
Master Gordon-Saker considered the rules and case law relating to proportionality that applied pre-April 2013 and commented as follows:
“In the present case, the particularly relevant factors are the amount of money involved, the importance of the matter to the parties and the specialised knowledge involved. This was not, it seems to me, a particularly complex case. There were no difficult issues of law. While there were issues in relation to the expert medical evidence, that was not unduly complex; and no more complex than a clinical negligence case where there is an issue between the experts. Essentially this was largely a case about what happened factually and what should have happened. There was a considerable amount of disclosure following the inquest and I was told that it ran to about 20,000 pages. That may explain some of the time spent, but it does not I think add to the complexity.
The obvious factor of this case which stands out was the importance to the parties … I accept the submission by Mr Westgate QC, on behalf of the Claimants, that the claim achieved far more than a financial settlement. The police accepted the verdict of the jury and publicly acknowledged the lessons that had been learned. This will have had an impact on future policing. However it also vindicated the Claimants’ position; and that seems to me to be of significant importance particularly in view of the acquittal of the officers at trial.
…However £1.6m is, on the face of it, a huge sum for the costs of a claim which resulted in an agreement to pay damages of £300,000 and which did not go to trial. Large parts of the costs relate to attending the criminal trial and attending and participating in the inquest. On behalf of the Defendant, Mr Bacon QC identified the costs of attending the criminal trial at about £138,000 and the costs of attending the inquest at about £300,000. In addition disbursements of about £350,000 were incurred in relation to the inquest, most of which is counsel’s fees. These figures exclude VAT.
Excluding VAT the total profit costs claimed in the Claimants’ bill are £942,850 and the total disbursements are £429,563. If one takes off the costs of attending the criminal trial and the inquest, the profit costs reduce to £504,850 and the disbursements to £79,563. The figure for profit costs includes £103,238 for drafting and checking the bill. So the profit costs for the claim, excluding the costs of attending the criminal trial and inquest and excluding the costs of drafting the bill, would be about £400,000.
On behalf of the Claimants, Mr Westgate QC submitted that it would be unfortunate if the court found the costs to be disproportionate by reason of the costs incurred in attending the criminal trial and inquest and then disallowed all or a large part of those costs on the basis that they were not recoverable in these proceedings. The test of necessity should be applied only to the balance, he submitted, which may not of itself have been disproportionate.
However it seems to me that the court has to adopt the two-stage approach identified by Lord Woolf. The first stage is to decide “whether the total sum claimed is or appears to be disproportionate”. If the test were to be applied after decisions had been taken to reduce the costs, for whatever reason, the logical conclusion would be that the test should be applied only at the end of the line by line assessment. If, for example, the costs of attending the criminal trial were to be disallowed and not then taken into account in considering proportionality, why should not any other costs disallowed on the basis that they were unreasonable not then be taken into account?
The Claimants’ solicitors have chosen to include the criminal trial and inquest costs as part of the costs of the civil proceedings and the court cannot, I think, hide or disregard those costs when considering the proportionality of the total. They are part of the total.
That said, by the same token it seems to me that when considering the proportionality of the total, one should have regard to the work that made up that total, including attending the Crown Court and the inquest, whether or not those costs end up as being recoverable.
The pre-2013 test of proportionality, like its successor, did not have any formula for deciding what figure would be proportionate built into it…However it is likely to be less helpful in a case which raises issues of public importance, such as the present, where the award of damages may not be the most significant factor driving the litigation. Essentially therefore whether the costs claimed appear to be disproportionate is one of judgment and feel based on the experience of the costs judge deciding the question. It probably goes without saying that, in deciding that question, a costs judge in 2018 must put out of mind the more stringent test of proportionality which has been in force for the last 5 years.
Despite the importance of this matter to the Claimants and the public importance, I cannot conclude that costs of over £1.3m (excluding value added tax) appear to be anything other than disproportionate under the pre-2013 test. I take into account that those costs include attending the Crown Court trial and participating in the inquest, each of which lasted about 6 weeks. But I also take into account that they do not include the costs of a trial in the civil proceedings. Had the costs of the estimated 19 day trial and trial preparation been incurred along the same trajectory, the total costs may well have exceeded £2m excluding value added tax.
Accordingly, on the item by item assessment, only those costs which would have been necessary had the case been conducted proportionately, will be allowed.”
Attendance at the Crown Court Proceedings:
The Master held that, on the facts of this case, it was reasonable for the Claimants’ Solicitors to have attended the Crown Court Trial of the Police Officers. However, it was held that this should have been note taking, done a relatively low level.
Independent Police Commissioner Complaint:
The Master held that these were not recoverable.
The Master considered the previous Authorities on the issue, and opined that:
“It seems to me that the court has to take a fairly broad, realistic, approach to the questions of (1) whether the inquest work proved of use and service in the civil claim, was relevant to issues in the civil claim, or was attributable to the Defendant’s conduct and (2) whether the work was necessary and reasonable.
… It seems to me that the costs of attending the inquest to hear the evidence, to cross-examine the non-family witnesses and to obtain disclosure from the Defendant all easily fall within the Gibson’s strands and are, in principle, recoverable. Insofar as work was done which was ancillary to that evidence gathering, it is also in principle recoverable. I have in mind corresponding with the coroner or attending a pre-inquest review if that was necessary to avoid limitation of the evidence that would be given.
I do not think that work done in securing a particular verdict is recoverable. I am not persuaded that the verdict would be relevant to the civil proceedings. Any impact that it might have on settlement would be speculative. That the terms of settlement that were agreed included the Defendant accepting the verdict cannot justify the work done to secure the verdict, without hindsight. Accordingly housekeeping and procedural work done in relation to the inquest would not be recoverable save insofar as it was necessary for the obtaining of evidence.
… The reasonableness of that work which was relevant will have to await the line by line assessment. However I am firmly of the view that it was not necessary, for the purposes of the civil proceedings, to instruct 2 counsel. In my view only one senior junior can be justified. Competent senior juniors should be adept at both cross-examination and the analysis of documents. In respect of the solicitors’ attendance, it would be reasonable and necessary to have a junior fee earner present to take a note of the evidence throughout the hearing (even if a transcript was obtained subsequently) and it would be reasonable and necessary for the senior conducting fee earner to be present during important parts of the evidence. Client care and providing comfort or support to the family was not relevant to the civil proceedings and should be remunerated under the exceptional funding which was granted for that purpose.”
Instruction of London Based Solicitors:
The Master held that given the issues, it was reasonable to have instructed London Based Solicitors who had the necessary experience to conduct a matter of this nature, even if that did mean a higher Hourly Rate. However, that did not therefore mean that the Rates claimed were reasonable.
“Taking these factors into account and having regard to my experience of similar cases, dissimilar but comparable cases and the costs of litigation generally since 2005, the rates claimed are too high to be reasonable.”
We certainly expect this to be raised in Detailed Assessments going forwards.
Where costs fall under the “old” Proportionality test pre-April 2013, it is clear from this matter that the Court will assess those costs with the “new” test in mind particularly when taking into account the level of costs claimed against the damages agreed, even if the matter is of importance to the wider public.
Much needed guidance has also been provided on attendance at Inquest and Crown Court Proceedings, and will consider the following when deciding what is recoverable:
- whether the inquest work proved of use and service in the civil claim, was relevant to issues in the civil claim, or was attributable to the Defendant’s conduct; and,
- whether the work was necessary and reasonable.