It was reasonable for a family bringing a civil action against the police over a death in custody to have its lawyers attend the related criminal trial and participate in the inquest and so it could recover the costs, the Senior Costs Judge has ruled.
However, in Powell and Ors v The Chief Constable Of West Midlands Police  EWHC B12 (Costs), Master Gordon-Saker found that the family committed unnecessary resources to these tasks and that a costs bill of £1.3m was disproportionate.
The judge was ruling on three preliminary issues ahead of the detailed assessment in the case: the proportionality of the costs claimed; the recoverability of the costs claimed for attending the prosecution of the defendant’s officers in the Crown Court, attending the inquest into the death of Mr Powell and pursuing a complaint to the Independent Police Complaints Commission (IPCC); and the reasonableness of the hourly rates sought by the claimants’ solicitors.
Ten officers were acquitted following a criminal trial over their actions during the incident, after which the IPCC decided not to pursue disciplinary charges.
The inquest then resumed, at which the jury concluded that, on a balance of probabilities, that Mr Powell died in a 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.
The civil claim was settled for an undisclosed sum as well as terms that the defendant accepted the verdict of the inquest jury and apologised unreservedly, and published a 96-page document of lessons learned.
The defendant agreed also to pay the claimants’ costs. They submitted a bill for £1.3m plus VAT. Although the claimants generally had the benefit of legal aid throughout the proceedings, no costs were sought in the bill from the Legal Aid Agency.
The pre-2013 proportionality test applied. Master Gordon-Saker said he recognised the amount of money involved, the importance of the matter to the parties and the public importance, as well as the specialised knowledge involved, although he said it was not a particularly complex case.
Large parts of the costs related to attending the criminal trial (£138,000) and attending and participating in the inquest (£300,000), as well as disbursements of about £350,000 incurred in relation to the inquest, most of which is counsel’s fees. There was also £103,000 for drafting and checking the bill. This left the profit costs for the actual claim at about £400,000.
Master Gordon-Saker said: “Despite the importance of this matter to the claimants and the public importance, I cannot conclude that costs of over £1.3m (excluding VAT) 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 six 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.”
On the costs of attending the criminal trial, the judge said it fulfilled all three strands identified in In re Gibson’s Settlement Trusts  Ch 179: the note of the evidence was (at least potentially) of use and service in the action, it was relevant to the issues and it was attributable to the conduct of the defendant’s officers.
However, it was not either reasonable or necessary to have anybody other than one junior fee earner present to take a note, and that was all he would allow.
The costs of attending the inquest to hear the evidence similarly fell within the Gibson’s strands, although he added: “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.”
The reasonableness of the work done by way of representation which was relevant would have to await the line-by-line assessment, the judge said, but he was “firmly of the view that it was not necessary, for the purposes of the civil proceedings, to instruct two 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 costs of the IPCC complaint were not recoverable as they were neither reasonable nor necessary. “That is because, generally, the only product of the complaint will be the decision, which is unlikely to be of any assistance in the civil proceedings…
“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.”
On hourly rates, Master Gordon-Saker rejected the defendant’s submission that it was unreasonable for the claimants, based in Birmingham, to have instructed central London solicitors, Deighton Pierce Glynn.
Given the seriousness of the case, it was, he said, “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”.
It was also relevant that initially the family had instructed a solicitor locally who did 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.”
The rates claimed throughout the bill – for work from 2005 to 2016 – were £350 for Grade A, £226 for Grade C and £138 for Grade D.
“Whatever the postcode from which the claimants’ solicitors practised, it seems to me that this was neither City work nor Outer London work,” the judge said.
Taking all the relevant 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”, he concluded.
“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.”