Diana Fullick Clara Fullick Denise Bacchus v The Commissioner of Police for the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Slade DBE |
| Judgment Date | 25 July 2019 |
| Neutral Citation | [2019] EWHC 1941 (QB) |
| Docket Number | Case No: HQ16P00388,QBD, HQ16P00388, QB/2018/0296 |
| Court | Queen's Bench Division |
| Date | 25 July 2019 |
[2019] EWHC 1941 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE
SENIOR COURTS COST OFFICE
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Slade DBE
Case No: HQ16P00388
QB/2018/0296
Mr Roger Mallalieu (instructed by Bhatt Murphy Solicitors) for the Claimants/Respondents
Mr Nicholas Bacon QC (instructed by Metropolitan Police Service, Directorate of Legal Services) for the Defendant/Appellant
Hearing date: 12 th March 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mrs Justice Slade DBE
The Commissioner of Police the Metropolis (‘the Defendant’) appeals from the judgment of Deputy Master Keens on 1 October 2018 (‘the judgment’). Following settlement of a claim by the Claimants arising from the death of Ms Susan Sian Jones at a police station which she had attended voluntarily, on a detailed assessment of costs the Deputy Master ordered the Defendant to pay the Claimants' costs in the sum of £88,356.22. The Claimants are close relatives of the deceased. References to documents in the appeal bundle are given as AB.
Mr Bacon QC for the Defendant contended that Deputy Master Keens erred in holding that the costs incurred by the Claimants, in respect of the Inquest, including pre-inquest hearings and the costs involved in the Inquest were recoverable in principle as costs of the claim. The parties were represented before the Deputy Master by costs lawyers, Mr Buckley for the Claimants and Mr Robins for the Defendant. On appeal the Claimants were represented by Mr Mallalieu and the Defendant by Mr Bacon QC.
Outline relevant facts
A claim for damages for breach of Article 2 of the European Convention on Human Rights, negligence and misfeasance in public office was made following the death of Ms Jones who became ill at a police station. The deceased had attended voluntarily as a witness to a crime. She did not recover and died in hospital eight days later. The Claimants are the deceased's two daughters and her sister.
The Claimants instructed solicitors. An Inquest was held. On 11 June 2015 there was an initial pre-inquest review hearing which was attended by representatives of the Claimants. In June 2015 the Claimants were provided with disclosure by the Defendant and the London Ambulance Service. At the end of March 2016 protective court proceedings were commenced and stayed pending the outcome of the Inquest. In September 2016 a second pre-inquest review hearing took place.
The Inquest started on 10 October 2016 and lasted seven days, concluding on 20 October 2016. The jury delivered a narrative verdict that the deceased's death had resulted from methadone and alcohol intoxication coupled with inadequate police policies, procedures and training.
Without service of a letter of claim or particulars of claim, in March 2017 the claim was settled for just over £18,000.
The submissions of the parties to Deputy Master Keens
A Bill of Costs was presented on behalf of the Claimants in which £122,000 was claimed. The costs included those related to attending the two pre-inquest hearings, the Inquest and in items 68 and 69 about £36,000 for civil claim documents work. All sums excluded VAT.
The Defendant challenged the claim for costs of the pre-inquest hearings on the basis that they were disproportionate. Mr Robins accepted that the costs of attending the Inquest were recoverable [AB 164 L 32] but he challenged the amount claimed. It was submitted that costs are to be assessed on the ‘new’ Jackson test in accordance with the guidance given by Mr Justice Leggatt in Kazakhstan Kagazy Plc v Zhunus [2015] EWHC 404. Mr Robins contended that Mr Justice Leggatt provided guidance on the post Jackson test of proportionality. He submitted this was ‘the lowest amount which [the receiving party] could reasonably be expected to spend in order to have the case conducted and presented proficiently having regard to all the circumstances.’ [AB 154 L 22–44].
Mr Robins submitted that attendance at the first pre-inquest review hearing ‘was not for the purpose of gathering evidence for the civil claim. This is to assist the coroner.’ [AB 172 L 1–47] He submitted ‘the case law provides that to be recoverable in civil proceedings ‘costs in relation to the inquest should be for the benefit of gathering evidence.’ [AB 173 L 28, 29].
There was an issue between the parties about the reasonableness and proportionality of the amounts claimed for each item, both as to the level of legal representation and the number of hours claimed.
Mr Buckley contended that the correct way to look at proportionality was to run through the factors in CPR 44.3(5). [AB 155 L 19–21]. He submitted, as was accepted by Mr Robins, that the claim was for more than money. It concerned systemic failings and gaps in policy of the police which were matters of public interest as well as interest to those of the parties. [AB 162 L 6,7].
Mr Buckley submitted that the first pre-inquest review was not a conventional 15 minute hearing. He said that ‘this was the first opportunity… for the claimant to start engaging with the [inaudible] to issues of concern, such as appropriate safeguards for victims like the deceased, the issue of expert evidence on causation, the position that Miss Jones had been left in…’ [AB 172 L 21–24].
The Decision of the Deputy Master
Deputy Master Keens observed that ‘proportionate costs does not necessarily, in my mind, mean the lowest amount.’ [AB p155 L 25–27]. He commented that the pre-inquest hearings ‘were instrumental in a number of different ways in getting [the Claimant's] own pathology evidence heard at the Inquest, in compelling certain police witnesses to attend.’ [AB p163 L 5–7].
Deputy Master Keens considered that at the second pre-inquest hearing the Claimants raised questions they wanted to be put to Dr Paul, the pathologist. [AB 174 L 13–15].
Deputy Master Keens held at AB 173 L 30–33:
“I think this inquest, you know, went a lot further than evidence gathering. I mean it was very largely determining the issues and that is why settlement was capable of being reached without the civil proceedings having really needing to be progressed.”
The Deputy Master then held at AB 174 L 25–31 in respect of the argument that costs of preparation for the Inquest should not be allowed:
“You know that is what analysis assumes as some sort of passive meaning or definition of the inquest that somehow you just go along and you just wait and see what comes out of it whereas this is actually having input into the inquest to ensure that the evidence is before the coroner should be considering, and the jury as it emerged, and expect a liability and I think it just artificial to say that work done and preparation for the inquest in taking those steps that somehow is not part of the civil claim. I see this all as, so far, as preparatory to the civil claim.”
The Deputy Master then carried out an assessment of the Bill of Costs.
The Grounds of Appeal Ground 1
It is said in Ground 1 that the Deputy costs judge erred in law in concluding that the costs of £88,356.22 which he ordered to be paid to the Claimants were proportionate within the meaning of CPR 44.3(5). This amount was not proportionate having regard to the fact that the Claimant's claim settled for £18,798 and before the issue of a formal letter of claim and prior to service of proceedings. The Deputy Master failed to apply CPR 44.3 correctly and treated the costs of the Inquest as though it represented the civil trial.
By Ground 1 it is further said that the Deputy Master failed to have any or any proper regard to the provision in CPR 44.3(2) that ‘costs which are disproportionate in amount may be disallowed or reduced even if they are reasonably or necessarily incurred.’ The total costs awarded were disproportionate for the purposes of the civil claim and should have been reduced even if necessarily incurred for the purposes of the Inquest.
Yet further by Ground 1 it is said that the Deputy Master wrongly proceeded on the basis that it was both reasonable and proportionate for the vast majority of the Inquest costs incurred by the Claimants to be recoverable as costs in the claim.
Ground 2
By Ground 2 it is said that the Deputy Master wrongly accepted the Claimants' argument that ‘the general costs of the inquest’ were recoverable as costs of the action. By wrongly holding that the Inquest was ‘the battleground’ for the claim the Deputy Master was led into the error of allowing the vast majority of the Inquest costs as costs of the claim. In doing so he wrongly treated the Inquest as though it was a trial of the civil claim. The costs allowed by the Deputy Master were not the costs of and incidental to the claim. It was not reasonable or proportionate for the Claimants to incur in the civil claim all of the costs of the Inquest which were allowed.
Ground 2 contains a table showing those costs said to be irrecoverable as they were in respect of steps which were not progressive of the civil claim nor did they represent a proportionate method of gathering evidence for the civil claim.
Submissions of the Parties
Mr Bacon QC opened his submissions by pointing out that this was the first appeal in which the recoverability of inquest costs in civil claims to be considered after the Jackson reforms. Counsel suggested that the court considering the new provisions was not necessarily bound by previous...
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