Inquest & Criminal Costs Recoverability
Dominic Woodhouse – National Training Manager
Costs of attending inquests, criminal proceedings, recoverability of costs relating to a complaint to the IPCC, and the reasonableness of hourly rates
Our Dominic Woodhouse National Training Manager at PIC reviews the case of Powell & Ors – v – The Chief Constable of West Midlands Police [2018] EWHC B12 (Costs)
Master Gordon-Saker dealt with preliminary issues in the course of detailed assessment of the costs of a claim ‘arising out of the tragic and appalling death’ of a man in police custody; the proportionality of the costs claimed, the recoverability of costs of attending the prosecution of the Defendant’s officers in the Crown Court, of attending the inquest into the death of the deceased and pursuing a complaint to the Independent Police Complaints Commission, and the reasonableness of the hourly rates claimed.
At face value, the deceased’s interaction with the police has every appearance of an extended incident that might be expected to attract censure of the officers involved. The deceased’s mother called the police after she became concerned about a deterioration in his mental health, believing that the police would take him to hospital as they had on previous occasions. The police officers arrived in a marked vehicle, and as the deceased approached them, they drove off, turned around and then deliberately drove at him. He was hit by the car and rolled on to the bonnet and then the roof before falling on to the road. He was then sprayed with CS gas and struck with a baton before being restrained on the ground, handcuffed behind his back and put in a van. Initially he was placed on his side in the van but by the time that he reached the police station he was on his front and positioned in a small space. Sadly by that time he was either dead or nearly dead.
Ten police officers were charged with offences arising out of the events leading up to Mr Powell’s death. The charges included dangerous driving, assault in relation to the use of the CS gas and baton, excessive restraint and failing to respond to the deterioration in Mr Powell’s condition (the latter being framed as misconduct in a public office).
At the trial in the Crown Court in 2006 the officers were acquitted, following which the IPCC decided not to pursue disciplinary charges. The inquest resumed in 2009, with the jury concluding that, on a balance of probabilities, the deceased had been transported in the police van on his side and then on his front, that he died in the police van from positional asphyxia and that he had been rendered more vulnerable to death from that cause by being struck by the police car, being sprayed with CS gas, being struck with a baton, being restrained on the ground while suffering psychosis and by extreme exertion.
Notwithstanding the Defendant’s denial of liability in the civil claims, they were eventually settled in November 2015 on terms that the Defendant would pay damages, accept the verdict of the jury at the inquest, apologise unreservedly, and publish a 96 page document of lessons learned. The total costs claimed by the Claimants were £1,603,380.00.
In terms of proportionality, as proceedings were commenced before the 1st April 2013, the ‘old’ test under Lownds – v – Home Office was to be applied. In Master Gordon-Saker’s view, the case was not particularly complex, there were no difficult issues of law, and whilst 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. The case revolved largely around factual matters and what should have happened. Disclosure following the inquest ran to approximately 20,000 pages, which in Master Gordon-Saker’s view may explain some of the time spent, but did not add to the complexity of the matter. The importance of the claim to the parties and its public importance were however of particular weight and relevance. Despite that, Master Gordon-Saker could not conclude that the costs were other than disproportionate under the pre-2013 test in a claim settled for £300,000.00.
In relation to the recoverability of costs of attending the prosecution of the Defendant’s officers in the Crown Court, of attending the inquest into the death of the deceased and pursuing a complaint to the Independent Police Complaints Commission, Master Gordon-Saker applied the three tests identified in In re Gibson’s Settlement Trusts [1981] Ch 179: that of being of use and service in the claim, of relevance to the issues and attributable to the Defendant’s conduct.
Costs of attending the criminal trial (approximately £138,000.00 excluding VAT), fulfilled all three strands identified in In re Gibson’s Settlement Trusts; the solicitors could obtain a note of what was said by the witnesses, and 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, but which could and should be achieved by attendance of a junior fee earner alone (though acknowledging that it could be the case that a note could have been obtained more economically by instructing a local agent or junior barrister in a local chambers).
In general terms, the costs of a complaint to the IPCC were unlikely to fall within the Gibson’s strands and were unlikely to be either reasonable or necessary, as the only product of the complaint would be the decision, which was unlikely to be of any assistance in civil proceedings; the report of the IPCC would probably not be admissible, but, even if it were, it would carry little weight given that the task of the court would be to make a similar analysis but of the evidence given at trial. The costs of the complaint were therefore not recoverable.
The costs of attending an inquest were accepted as being potentially recoverable to the extent that they fell within the principles identified in In re Gibson’s Settlement Trusts. They came to approximately £650,000.00 excluding VAT, their magnitude partly a function of the length of the hearing at 29 days, but also the extent of resources allocated: two senior junior counsel and a senior and a junior fee earner. It was argued that counsel had complementary skills, one particularly skilled at cross-examination and the other particularly skilled at analysing the schedules of evidence, and it was said to be 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.
In Master Gordon-Saker’s view the court has to take a fairly broad, realistic, approach to the questions of 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. Master Gordon-Saker found it easy to accept that the costs of attending the inquest to hear the evidence, cross-examine the non-family witnesses and to obtain disclosure from the Defendant fell within the Gibson’s strands and were, in principle, recoverable. Insofar as work was done which was ancillary to those aspects it was also in principle recoverable, with Master Gordon-Saker giving as examples corresponding with the coroner or attending a pre-inquest review if that was necessary to avoid limitation of the evidence that would be given.
Master Gordon-Saker did not however consider that work done in securing a particular verdict was recoverable as he was not persuaded that the verdict would be relevant to the civil proceedings, with any impact that it might have on settlement being speculative. 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.
Whilst assessment of individual aspects of work would await the line by line assessment, Master Gordon-Saker was firmly of the view that it was not necessary for the purposes of the civil proceedings to instruct two counsel and only one senior junior could be justified. Master Gordon-Saker commented that 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.
Master Gordon-Saker then had to consider the level of hourly rates claimed. The First Claimant lives in Birmingham and instructed solicitors in Central London. The family had originally instructed a local firm who specialised in criminal defence work. They did not however have experience of claims in this area and lost the trust and confidence of the family. They went on to instruct solicitors in Central London recommended to them by a solicitor and an inquest charity. Master Gordon Saker considered as a generality that it will rarely be truly the case that a party will need to instruct lawyers in London in preference to those elsewhere, where firms outside London, and in particular the national firms, have developed greater specialisation and experience especially in commercial litigation and transactional work. Focus had to remain however on the present case.
In Master Gordon-Saker’s view, 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 those charged by the solicitors instructed, but in the circumstances of this case it was reasonable to instruct the recommended firm based in Central London, despite the higher hourly rates that would be charged. Whilst it was not City or Outer London work, it was a case of public importance. The public importance and the importance to the parties outweighed the value of the claims and their complexity, and the claims required handling by specialists, though which consideration was somewhat lessened by the involvement of counsel.
Average rates were allowed to cover a number of years and to reflect the fact that rates did increase within those periods. For 2005 to 2011, £315 per hour was allowed 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, Master Gordon Saker allowed £335 for the Grade A fee earner, £220 for the Grade C fee earner and £130 for the Grade D fee earners.
Master Gordon Saker helpfully commented that had he concluded that a national firm, with a Birmingham presence should have been instructed he would have allowed £230, £180 and £115 for 2005 to 2011 and for the remainder of the bill, £250, £200 and £120.
Identifying which elements of costs may be recoverable in the specific circumstances of your claim will require close consideration of the facts and application of the three-strand reasoning in re: Gibson. Contact Partners in Costs for assistance in navigating this often-problematic area, from preparation of your bill of costs to representation at detailed assessment.
Dominic Woodhouse – National Training Manager at Partners in Costs
07.11.18