![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Queen's Bench Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just Β£5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Fullick & Ors v The Commissioner of Police for the Metropolis [2019] EWHC 1941 (QB) (25 July 2019) URL: https://www.bailii.org/ew/cases/EWHC/QB/2019/1941.html Cite as: [2019] Costs LR 1231, [2019] EWHC 1941 (QB), [2019] Inquest LR 165 |
[New search] [Printable PDF version] [Help]
QB/2018/0296 |
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE
SENIOR COURTS COST OFFICE
Royal Courts of Justice Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
DIANA FULLICK CLARA FULLICK DENISE BACCHUS |
Claimants/ Respondents |
|
- and |
||
THE COMMISSIONER OF POLICE FOR THE METROPOLIS |
Defendant/ Appellant |
____________________
Mr Nicholas Bacon QC (instructed by Metropolitan Police Service, Directorate of Legal Services) for the Defendant/Appellant
Hearing date: 12th March 2019
____________________
Crown Copyright ©
Mrs Justice Slade DBE:
Outline relevant facts
The submissions of the parties to Deputy Master Keens
The Decision of the Deputy Master
"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."
"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 Grounds of Appeal
Ground 1
Ground 2
Submissions of the Parties
"I would however wish to add an observation on the question of proportionality. There may well be cases (I think it better to say nothing myself as to whether either of these two cases do or do not fall into such a category: it was and is a matter for the Costs Judge) where the costs of antecedent proceedings claimed as incidental costs are so large by reference to the amount of damages at stake and/or the direct costs of the subsequent civil proceedings, if taken entirely on their own, that a Costs Judge will wish to consider very carefully the issue of proportionality.
If an assessment of disproportionality is made then costs will only be allowed if they were necessarily incurred and reasonable in amount."
Counsel submitted that the rule change post Jackson applies a more stringent test. CPR 44.3(2) provides:
"(2) Where the amount of costs is to be assessed on the standard basis, the court will
(a) Only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred."
"in the large the costs involved in the inquest should be regarded as costs of the claim."
Counsel contended that passages to similar effect in the Transcript of Proceedings displayed an error in approach by the Deputy Master. Detailed challenges to the level of legal representative and amount of time allowed by the Deputy Master in respect of each time were made. These are set out in helpful tabular form in the Amended Grounds of Appeal.
"Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in
(b) The High Court
shall be in the discretion of the court."
Discussion and Conclusion
"The functions of an inquest on a dead body at the present day are really to determine certain facts about the deceased, the cause of death, and the circumstances surrounding both death and that cause. Lord Lane CJ once summarised this by saying that: 'The function of an inquest is to seek out and record as many of the facts concerning the death as public interest requires.'"
Jervis continued at paragraph 1-24 that in R v North Humberside Coroner ex parte Jamieson [1995] 1 QB1 the Court of Appeal held:
"It is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame."
An inquest is inquisitorial. A civil claim is adversarial.
"51(1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in
(b) the High Court; and
(c) the county court,
shall be in the discretion of the court."
"44.3(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs
on the standard basis; or
on the indemnity basis,
but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.
(2) Where the amount of costs is to be assessed on the standard basis, the court will
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.
(Factors which the court may take into account are set out in rule 44.4.)
44.4(1) The court will have regard to all the circumstances in deciding whether costs were
(a) if it is assessing costs on the standard basis (i) proportionately and reasonably incurred; or(ii) proportionate and reasonable in amount
(3) The court will also have regard to
(a) the conduct of all the parties, including in particular
(ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute;
(b) the amount or value of any money or property involved;
(c) the importance of the matter to all the parties;"
"It follows that, in agreement with the Cost Judges in each of these cases, I consider that the approach taken by Clarke J in the Bowbelle was correct. Costs of attendance at an inquest are not incapable of being recoverable as costs incidental to subsequent civil proceedings. Nor does this give rise to any unprincipled approach because the relevant principles, as conveniently set out in Gibson, are available to be applied by Costs Judges in a way appropriate to the circumstances of each case. It may also be remembered that Clarke J in fact disallowed some of the costs relating to the inquest claimed as costs incidental to the civil proceedings (the overall approach illustrating just how important the factor of relevance is)."
In Gibson Sir Robert Megarry VC at page 186 identified three strands of reasoning to be applied in deciding whether costs incurred before the relevant proceedings in which costs are claimed are recoverable. These are whether those prior steps were of use and service in the proceedings, were of relevance to an issue and to attributability of the defendant's conduct to the claim.
"It is further essential, applying the principles in In re Gibson's Settlement Trusts [1981] Ch 179, to have regard to considerations of relevance where the costs of attendance at an inquest are claimed, in whole or in part, as costs incidental to the subsequent civil proceedings."
In support of his contention that the Deputy Master erred in awarding the costs of the pre-inquest hearings, counsel relied upon the judgment of Mr Justice Clarke (as he then was) in Bowbelle at page 2019 that:
"I do not think that by the spring of 1990 all the costs of attending a full inquest could fairly be regarded as costs of or incidental to the contemplated proceedings against the shipowners. By that time negligence had been conceded."
However this observation, as that in Roach, does no more than emphasise the need to consider the facts of each case in order to decide whether the costs of attendance at the whole or part of an inquest are proportionate to the matters in issue in the civil proceedings. In Bowbelle negligence had been conceded before the inquest. The coroner did not proceed with an inquiry into the causes of the collision because of an intention to proceed with a criminal prosecution.
"Mr Westgate in fact was, I think entitled to observe as he did that it was open in the instant case to the Home Office likewise to seek to avoid or minimise any potential liability for such costs here by admitting liability prior to the inquest. He and Mr Post were also entitled to observe that the inquests here in practice seem to have had the effect of causing the civil proceedings thereafter relatively speedily (and thereby in a way saving of some costs) to be compromised."
"The touchstone is not the amount of costs which it was in a party's best interests to incur but the lowest amount which it could reasonably have been expected to spend in order to have its case conducted and presented proficiently, having regard to all the relevant circumstances. Expenditure over and above this level should be for a party's own account and not recoverable from the other party."
However, Mr Justice Leggatt made these observations on the facts and circumstances of the particular case before him. The passage relied upon by Mr Bacon QC was preceded by the following:
"13. In a case such as this where very large amounts of money are at stake, it may be entirely reasonable from the point of view of a party incurring costs to spare no expense that might possibly help to influence the result of the proceedings. It does not follow, however, that such expense should be regarded as reasonably or proportionately incurred or reasonable and proportionate in amount when it comes to determining what costs are recoverable from the other party. What is reasonable and proportionate in that context must be judged objectively."
Unlike Kazakhstan Kagazy the civil claim in this case was about more than money. It challenged police practices and procedures and asserted breaches of Article 2 of the European Convention on Human Rights. Counsel relied upon Coroners (Inquest) Rules 2013 Rule 13 to challenge the need for the level of costs for attending the Inquest hearing.
"The defendant's challenge, as premised in the points of dispute, was really focused on matters of principle really where I have found against the defendants in that I have held that in the large the costs involved in the inquest should be regarded as costs of the claim, so as against that finding, the defendant's contending per the points of dispute that only a third really of the documents time at about 30 hours should be allowed to the Grade A is unrealistic and falls away. The claimants made a proposal of reduction, in respect of Grade A fee earner time to 80 hours; I think the reduction should be greater but not very much more so. I propose to reduce the 91.9 hours claimed for the Grade A fee earner by 19.9 hours to 72 hours and having made that disallowance there are six hours of that time that I think should be transferred to the Grade D fee earner in relation to preparation of bundles."
Disposal