England and Wales High Court (Senior Courts Costs Office) Decisions

SUPREME COURT COSTS OFFICE

		St Dunstans House Cliffords Inn Fetter Lane EC4E 1DQ
		6th May 2009

MASTER GORDON-SAKER:

1. The claimant had the misfortune to be arrested by the police while he was taking part in a demonstration against the building of an animal research laboratory in Oxford. He was taken into custody and, as a result of what happened, he decided to pursue a claim against the police for wrongful arrest, assault and false imprisonment.
2. He consulted solicitors in February 2006 and eventually proceedings were issued against the Chief Constable of Thames Valley Police and those proceedings eventually resulted in a Part 36 offer of £7,500 together with costs which offer was accepted by the claimant in July 2008.
3. This matter now comes before me for the detailed assessment of the claimant's costs. The first objection raised by the defendant is that the claimant has included in his bill the costs of pursuing a complaint to the Independent Police Complaints Commission and thereafter of pursuing an appeal from that decision.
4. The defendant submits that the costs so incurred cannot be costs of and incidental to the civil claim in respect of which the claimant is entitled to his costs. In advancing that argument today Mr Abraham, who appears on behalf of the defendant, makes three concessions.
5. First, he accepts in principle that costs incurred before the issue of the proceedings may be recoverable. Second, he concedes that reasonable and proportionate costs of obtaining evidence and information for a civil claim are recoverable. Third, he indicates that he is not pursuing the jurisdictional argument that this Court cannot allow costs incurred in relation to proceedings before another body if those costs fall within the second concession that he made.
6. The principal argument made on behalf of the defendant, as I understand it, is that the complaint or a complaint to the IPCC is not an evidence gathering exercise. The purpose of such a complaint is to obtain a finding of misconduct which may then lead to disciplinary proceedings against the officers involved and that because that is really the only purpose the costs of that exercise cannot be costs of and incidental to the costs of subsequent civil proceedings.
7. Mr Abraham referred to Department of Health and Social Security v Envoy Farmers Ltd [1976] 1 WLR 1018 QBD in which a Master in the Queen's Bench Division had referred the question of whether the defendant was liable to pay national insurance contributions for determination by the Secretary of State pursuant to Section 97 subsection 2 of the National Insurance Act 1965. The Secretary of State after an enquiry held that the defendant was not liable. The Master then dismissed the action with costs to include the costs of and incidental to the enquiry.
8. On appeal Mr Justice Jupp held that the costs of the inquiry before the Secretary of State were not incidental to the court proceedings. Rather they were incidental to the proceedings before the Secretary of State, which proceedings were forced upon the parties by the lack of jurisdiction in the court to deal with the matter of contention. Accordingly, the Master had no power to make an order for the costs of and incidental to the inquiry.
9. Mr Justice Davis considered the Envoy Farmers case in the recent case of (1) Gerald Laurence Roach (2) Jean Roach v Home Office [2009] EWHC 312 QB where he said this at paragraph 45,

'In Envoy Farmers the costs of the inquiry before the Secretary of State could not be assessed as "incidental to" the legal proceedings because it was the inquiry itself which was (if I may put it this way) the dominant proceeding: In view of the issue raised, the inquiry was paramount. That, I think, is what Jupp J. was saying in his remarks at page 1021 F-G. It is also borne out by his subsequent observations (at page 1022 B-D). If the department, as it could have done and perhaps should have done, had referred the matter to inquiry first, the company could have got no costs of the inquiry. It would have been anomalous for the company to get the costs of the inquiry as "incidental" costs simply because the department had (fruitlessly) first issued a writ.'

10. Roach was a decision in relation to whether the claimant could recover the costs incurred in attending an inquest in subsequent civil proceedings. The defendant in that case sought to argue that the costs of one set of proceedings are never recoverable "as costs of or incidental to" another set of proceedings and that there was no exception to that.
11. That submission did not find favour. At paragraph 47 Mr Justice Davis said,

'Accordingly I am not bound by authority to accept the proposition for which Mr Morgan argued; and I do not think the general principle for which he argued can be extracted from the cases. Since I can see no other convincing rationale for such a proposition, I can see no other basis for restricting the operation of the wide language of section 51 [of the Supreme Court Act 1981] itself and the extent of the Court's jurisdiction. Nor does this leave a paying party without protection in such a case. On the contrary, the paying party has the protection of the evaluative assessment powers conferred by the statute and subordinate rules on the Costs Judge.'

12. At paragraph 48,

'It follows that, in agreement with the Cost Judges in each of these cases, I consider that the approach taken by Mr Justice Clarke 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 Mr Justice Clarke 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). 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.'

13. The reference to Gibson is a reference to in Re: Gibson's Settlement Trusts [1981] 2 WLR 1. Sir Robert Megarry the Vice Chancellor said at page 8 after referring to the earlier decision of Frankenburg v Famous Lasky Film Service Ltd [1931] 1 CHY 428 that in that case:

"the plaintiff feared that a proposed demolition and reconstruction of the defendant's neighbouring building would injure his ancient lights and so he instructed solicitors and had elevations and plans of the neighbouring premises prepared. Negotiations for a settlement failed; the plaintiff issued a writ and ultimately the case was compromised on terms that the defendant should pay the plaintiff the damages found due on an inquiry and also his solicitor and client costs. The dispute was as to the plaintiff's costs incurred before he issued his writ. At page 435 Lord Hanworth MR made it clear that in his view the plaintiff's case began not merely when the writ was issued but before. At page 436, he reiterated the views that he had expressed in the Pecheries case [1928] 1 KB 750 repeating his words about materials which ultimately proved of use and service in the action. However he explained this in terms of being "relevant to some of the issues which had to be tried and in respect of which justice was sought". Lower down the page he referred to "costs which may be fairly attributable to the conduct of the defendants and thus within the costs which it was contemplated would have to be paid by the defendants". There were thus three strands of reasoning, that of proving of use and service in the action, that of relevance to an issue and that of attributability to the defendant's conduct. At pages 440 to 441 Lawrence LJ referred to the concept of use and service in the action and made it plain that even if the immediate purpose of obtaining materials was to see whether to sue, the taxing Master could allow costs which he considered to have been properly incurred in obtaining materials which would be useful to the plaintiff at the trial. Slesser LJ simply agreed with both judgments."

14. It seems to me, based on those decisions, to be clear that the costs of proceedings may include the costs of other proceedings, if those costs fall within those three strands. That was the view of Clarke J in the Bowbelle [1997] 2 Lloyd's Rep 196 referred to by Davis J at paragraph 32 in Roach. But ultimately one has to look at the costs which are claimed and form a view as to whether they are genuinely costs of and incidental to the proceedings in respect of which an order for costs has been made.
15. In this case it is clear that the claimant consulted solicitors shortly after his arrest with a view to pursuing a claim for damages against the police. It is also clear from the claimant's solicitor's letter to the claimant dated the 21^st February 2006 that the claimant's solicitor took a pessimistic view of the likely outcome of a complaint to the IPCC and that the claimant and the solicitors had agreed, by that stage, that a complaint would not be made, but that the situation should be reviewed.
16. The situation was reviewed nearly a year later on the 5^th January 2007 in a personal attendance by the solicitor on the claimant. By that stage, it is clear from the attendance note, the claimant's solicitor considered that the central issue was whether the claimant had deliberately pushed his way through the police cordon; in which case, on the police version of events, the claimant would be arrestable because apparently it had been agreed between the police and the organisers of the demonstration that anybody who went beyond the police barriers or the police line would be in breach of the agreed conditions and would be amenable to arrest; or, whether he had not deliberately pushed through the police cordon.
17. It is also clear from the attendance note that by that time the solicitor knew what the police officers were going to say. The decision to pursue the complaint is summarised in three lines which were read out by Mr Walton on behalf of the claimant and so I think can be repeated in this judgment.

'Re: Complaint. Explain LSC rules re this. Should only sue after gone through complaints process so am duty-bound to advise we complain unless has v strong personal views about this. When factual dispute almost certainly will fail but never know, might get something useful out of it. Agree then that we will complain.'

18. It seems to me from a reading of that and the initial advice that was given to the claimant that the intention in pursuing the complaint was to satisfy the Legal Services Commission or some other purpose but was not for the purpose of obtaining evidence which would, borrowing the words from Gibson, be 'Of use and service in the action.'
19. A complaint to the IPCC is rather different in nature to an inquest. Costs of attending an inquest may be recoverable in subsequent proceedings if they fall within the scope of the costs order in the subsequent proceedings because the costs are incurred in obtaining evidence for the subsequent proceedings.
20. That was I think the gist of my decision in King v Milton Keynes General NHS Trust [2004] EWHC 9007 (costs), the decision of Master O'Hare in Stewart & Howard v Medway NHS Trust [unreported 6^th April 2004] and also the decision in Roach.
21. An inquest is an inquisitorial investigation at which live evidence is given and that evidence may be crucial to subsequent civil proceedings arising out of the death. In IPCC proceedings there is I am told generally no hearing. The IPCC consider the document to which they are referred and then produce a written decision. That decision, it seems to me, would be of no evidential value in any subsequent civil proceedings and would certainly not be binding on the court in those subsequent civil proceedings.
22. It is difficult to say how the decision of the IPCC could be of use and service in the action. The complainant would not have the opportunity to test the evidence produced before the IPCC and so the only product of the complaint would be the decision. In those circumstances it is difficult to conclude other than that the costs of pursuing the complaint to the IPCC and the subsequent appeal cannot be costs of obtaining evidence and information for the subsequent civil claim and therefore cannot be costs of and incidental to that subsequent civil claim.
23. It may be that some work in this case was done for both purposes. I am told that the claimant's witness statement was a developing document and an initial draft was prepared when instructions were first given. It was then amended. The version which was used in support of the complaint to the IPCC was simply the version of the developing document available on that date and it may be that some of the work described in the bill as being work done on the complaint statement may have been mis-described and may be recoverable as part of the costs of the action. We can only decide that by looking at the individual items and the work described.
24. Mr Abraham on behalf of the defendant submits that if I find in favour of the defendant on this preliminary point I should require the bill to be redrawn so that the costs of work done in relation to the IPCC complaint are identified and removed. He accepts that some of the work is obviously identifiable: such as correspondence with the IPCC, but some is not, such as correspondence with the claimant. Mr Walton, on behalf of the claimant, submits that the work attributable to the complaint should be easily identifiable as we go through the items. If it were possible, I would prefer not to require the redrafting of the bill. However, in view of my finding, that work done in relation to the complaint and the appeal is not part of the costs of and incidental to the claim, it seems to me, that the defendant is entitled to a bill which strips out those costs so that he knows what is being claimed against him.
25. I am also fortified in the view that this is the right approach by the fact that I think it unlikely that we will complete the detailed assessment today in any event, but particularly if we have to go through each item to see whether it included work done in relation to the IPCC complaint. However, subject to submissions, I am anxious not to waste time and it may be that we can deal with other preliminary points such as proportionality - maybe not because we do not know what the bill is going to be. However, we may be able to deal with hourly rates.

End of judgment.