PROPORTIONAL COSTS IN A FATAL CASE: THE MATTERS THAT CAN RECOVERED ON ASSESSMENT

 

The facts in Powell & Ors v The Chief Constable of West Midlands Police [2018] EWHC B12 (Costs) are quite extraordinary.  This judgment, on the issue of costs, adds to the material relating to proportionality.  Equally important is the fact that it provides some guidance as to the steps a claimant is able  recover costs for in a fatal case.

 “... 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

THE CASE

The claimants were bringing an action following the death of Mikey Powell.   The police had been called because Mr Powell had deteriorating mental health problems. The police car arrived and deliberately drove the car at him. He was struck by the car, rolled onto the bonnet and the roof and fell onto the road. He was then struck with a baton and sprayed with CS gas, restrained on the ground, handcuffed and placed in a van. He died in the van of positional asphyxia.

The police officers involved were charged, but subsequently acquitted. The IPCC did not bring disciplinary charges.

The jury at the coroner’s court found that the cause of death was positional asphyxia.

The case was settled on payment of £300,000. The defendant accepted the verdict of the jury.

THE BILL

The bill lodged by the claimants was for £1,603,080.  The Master was considering general matters of principle and proportionality before the item-by-item assessment.

PROPORTIONALITY

Master Gordon -Saker considered the rules and case law relating to proportionality, and then applied them in the context of this case.  The Master was considering the test that applied prior to teh 1st April 2013.

  1. 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.
  2. The obvious factor of this case which stands out was the importance to the parties and the public importance. The Claimants’ case was that Mr Powell was killed as the result, at least in part, of the direct intentional use of force by the police. This was against a background where there was cause to believe that racial stereotyping played a part in the way that the officers had reacted to him, failed to listen to his mother and conducted an inadequate investigation after the event.
  3. 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.
  4. Had the officers been convicted, vindication (at least in part) may have been obtained earlier. In order to obtain that vindication, in the light of the acquittals, it was necessary for the Claimants to take an active role in the inquest as well as pursuing the civil claim.
  5. 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.
  6. 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.
  1. 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.
  2. 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?
  3. 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.
  4. 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.
  5. The pre-2013 test of proportionality, like its successor, did not have any formula for deciding what figure would be proportionate built into it. The test suggested by Master Hurst[1] of whether a client of adequate means would be prepared to pay that level of costs out of his own pocket, may be helpful in some cases. 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.[2] 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.
  6. 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.
  7. Accordingly, on the item by item assessment, only those costs which would have been necessary had the case been conducted proportionately, will be allowed.

 

THE COSTS OF ATTENDING THE CROWN COURT PROCEEDINGS

The Master held that, on the facts of this case, it was reasonable for the claimant’s solicitors to attend the Crown Court trial of the police officers. However this should have been note taking, done a relatively low level.

  1. Given the nature of the case and the direct relationship of the evidence that would be given in both the criminal and the civil proceedings, in my view it was both reasonable and necessary for the solicitors to attend the criminal trial. Not only did they obtain a note of what was said by the witnesses, the fee-earner attending would also be able to report back on what happened at the trial and the demeanour of the witnesses; aspects which would not come across from a transcript alone. The notes that were taken were fairly full, but they were not of course a verbatim transcript.
  2. I do not however think that it was either reasonable or necessary to have anybody other than one junior fee earner present to take a note. It may also be the case that a note could have been obtained more economically by instructing a local agent or junior barrister in a local chambers. But as a matter of principle, I would allow the attendance of one junior fee earner.
  3. Some time has been claimed for corresponding with the Crown Prosecution Service, particularly in relation to the charges which should be brought. It seems to me that in principle at least correspondence with a prosecuting authority about the charges to be brought might fall within the Gibson’sstrands on the basis that, as a conviction can be relied on in subsequent civil proceedings, the actual offence charged may be very relevant. In principle this work might be both reasonable and necessary, but whether individual items were reasonable and necessary would have to await the item by item assessment.

THE COSTS OF THE COMPLAINT TO THE INDEPENDENT POLICE COMPLAINTS COMMISSIONER

The Master held that these were not recoverable.

  1. In my view the costs of pursuing the complaints, on behalf of the First Claimant, are not recoverable. The complaints and the outcome were not of use and service in the civil claim or relevant to it. That by-products of the complaints, the transcripts and CCTV examination, may have proved of use does not justify the work done on the complaints. Those by-products were not inevitable consequences of the complaints. The IPCC may well not have chosen to obtain them.
  2. Further it seems to me that the work done on the IPCC complaints was not necessary, in a Lownds sense. If I am wrong on relevance, I would in any event have disallowed these costs on the ground that they were not necessary.

THE COST OF ATTENDING AND PARTICIPATING IN THE INQUEST

  1. This is fairly well trodden ground and I was referred to a number of authorities. Those which are binding on me are the decision of Clarke J (as he then was) in The Bowbelle [1997] 2 Lloyd’s Rep 196 and the decision of Davis J (as he then was) in Roach v Home Office [2010] QB 256It is clear from those decisions that the costs of attending an inquest may be recoverable as part of the costs of subsequent civil proceedings if they fall within the principles identified in In re Gibson’s Settlement Trusts.The other decisions to which I was referred are of Costs Judges and Deputy Costs Judges as they attempted to grapple with these principles.
  2. The area of dispute between the parties is perhaps not that great. On behalf of the Defendant, Mr Bacon QC accepted that the costs of attending the inquest were recoverable in principle provided that a material purpose was to obtain evidence for the subsequent proceedings. However where the purpose of the attendance related to a wider public interest or to obtaining a Rule 43 report, the costs could not be recovered as part of the civil proceedings. Mr Bacon QC submitted that, in broad terms, I should follow the approach taken by Master Rowley in Lynch v Warwickshire Police(unreported, 14 November 2014).
  3. At the relevant time rule 43 of the Coroners Rules 1984 enabled a coroner who believes that action should be taken to prevent other deaths in similar circumstances to make a report to the appropriate person.
  4. In Lynch Master Rowley divided the categories of work that had been carried out in relation to the inquest and, in broad terms, indicated that he would allow the costs of attending to hear the witnesses give evidence, but would not allow the costs of attending to hear witness statements being read out or for “housekeeping” matters.
  5. different view was taken by Master Campbell in Wilton v The Youth Justice Board (unreported, 23 December 2010). He allowed the costs of making submissions to the coroner and of attending during the jury’s deliberation. He thought that it would be unreasonable for the Claimant’s legal team to have to “pack their bags” when the evidence concluded and that it would be reasonable to work towards ensuring that the jury reached a proper conclusion. In that case a verdict of unlawful killing would have been overwhelmingly more helpful in obtaining an admission of liability than a finding of accidental death.
  6. In Douglas v Ministry of Justice [2018] EWHC B2 (Costs), Master Leonard trod a line between Lynch and Wilton, and allowed the costs for attending for the evidence and obtaining disclosure from the Defendants, but also the costs of making submissions designed to secure a verdict that would assist the Claimant’s case. He did not allow the costs of participating in the procedural and housekeeping matters, attending the coroner’s summing up or waiting for the verdict.
  7. A particular feature of the present case is the amount of costs claimed for attending the inquest – about £650,000 excluding value added tax. That is partly a function of the length of the hearing – 29 days. But the level of attendance was also high: two senior junior counsel (both of whom went on to take silk) and a senior and a junior fee earner.
  8. Mr Westgate QC explained that counsel had complementary skills. Mr Menon was particularly skilled at cross-examination while Ms Hill was particularly skilled at analysing the schedules of evidence. As Ms Deighton explained at paragraph 59 of her statement, the disclosure by the Defendant came at the last minute. It was necessary for the senior solicitor to be there so as to coordinate the strategic approach to the witnesses as well as providing support to the Claimants.
  9. In relation to the work done to secure the verdict, Mr Westgate QC submitted that the verdict would be an important element in achieving a settlement of the civil claim and work done in negotiating a settlement is generally recoverable. He also submitted that it would not necessarily be open to the Defendant to go behind the article 2 verdict as that might lead to the state reaching different conclusions as to the cause of death. However the decision of the House of Lords in R(Amin) v Home Secretary [2004] 1 AC 653, on which he relied, does not I think support that submission as there the deficiency was the absence of adequate investigation rather than duplication of investigation.
  10. 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. I bear in mind in particular the emphasis placed on relevance by Davis J in Roach.
  11. 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.
  12. 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.
  13. The answer in the present case to Master Campbell’s concern that the Claimants’ solicitors would unrealistically have to pack their bags at the end of the evidence, is that they would have been there anyway under the exceptional funding granted for representation of the family at the inquest. The task that the court faces is identifying which parts of that representation were relevant to the civil proceedings as well. The work that was not relevant will still be remunerated by the state.
  14. 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.

THE HOURLY RATE

The Master then considered the reasonableness of instructing London, rather than Birmingham, solicitors.
  1. In my judgment the present case is obviously different. A reasonable litigant, in the position of the First Claimant, would have appreciated that there was a difference between the rates that would have been charged by a firm in Birmingham in 2005 and the rates that are now claimed for work done in 2005 by the Claimants’ solicitors. But in the circumstances of this case I do not think that reasonable litigant would have concluded that it was not reasonable and proportionate to instruct Deighton Guedalla.
  2. Unlike A v Chief Constable of South Yorkshirethe present case arose out of a death in custody. There were therefore the most serious allegations of misbehaviour by the police officers involved. While there was in both A and in the present case, a belief that the victims were the subject of racial discrimination, the belief in the present case was far more significant because of the outcome. As Ms Deighton explains in paragraph 28 of her statement: “It was their gut sense from what Claris Powell and Sharon Powell had witnessed and how they had been treated that Mikey Powell died in part because of his colour”.
  3. It is also relevant that initially the family had instructed a solicitor locally who does not appear to have had the required expertise. Perhaps more significantly, I am not persuaded that there was a solicitor in Birmingham who had the experience to pursue this case. None has been identified.
  4. Accordingly in my opinion it was reasonable and necessary (in a Lownds sense) for the Claimants to instruct a firm of solicitors in Central London with experience of this type of case, despite the higher hourly rates that would be charged.
  5. That does not however mean that the rates claimed are reasonable. Whatever the postcode from which the Claimants’ solicitors practised, it seems to me that this was neither City work nor Outer London work. The guideline hourly rates for solicitors in Central London in 2005 were £276 (A), £171 (C) and £110 (D). For 2010, the rates were £317 (A), £196 (C) and £126 (D). Of course the guideline rates are just that, guidelines for the assistance of judges carrying out summary assessment. But for detailed assessment they have been described both as a starting point and as a cross-check.
  6. This was a case of public importance, significant importance to the parties, of not insignificant value but not of particular complexity. The public importance and the importance to the parties outweigh the other factors. This required handling by specialists but, as against that, there was significant input from counsel.
  7. 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.
  8. Given the period that the bill covers and the number of parts that it contains, it would be both sensible and practical to allow average rates to cover a number of years and to reflect the fact that rates did increase within those periods. For Sections 1 and 2 of the bill (broadly 2005 to 2011) I would allow as reasonable £315 for the Grade A fee earner, £205 for the Grade C fee earner and £120 for the Grade D fee earners. For the remainder of the bill, I would allow £335 for the Grade A fee earner, £220 for the Grade C fee earner and £130 for the Grade D fee earners.
  9. Had I concluded that a national firm, with a Birmingham presence, of the kind identified by Mr Bacon QC should have been instructed I would have allowed for Sections 1 and 2, £230, £180 and £115 and for the remainder of the bill, £250, £200 and £120.

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