The High Court’s decision in Fullick & Ors v The Commissioner of Police for the Metropolis [2019] EWHC 1941 (QB) upheld a costs award of £88,356 (including substantial inquest participation costs) against an £18,798 settlement in a death in police custody case, holding that the Deputy Master properly applied CPR 44.4(3)(c) by considering the importance of institutional accountability and public interest alongside financial recovery.
Background
A claim was brought by Diana Fullick, Clara Fullick, and Denise Bacchus, the close relatives of Susan Sian Jones, who died after becoming ill while voluntarily attending a police station as a witness [§3]. The claim was against the Commissioner of Police for the Metropolis for damages arising from breach of Article 2 of the European Convention on Human Rights, negligence, and misfeasance in public office [§3]. Solicitors were instructed by the claimants, and an inquest was conducted into the death. Pre-inquest review hearings took place on 11 June 2015 and in September 2016, with the claimants’ representatives in attendance [§4]. Disclosure was provided by the defendant and the London Ambulance Service in June 2015 [§4]. Protective court proceedings were commenced at the end of March 2016 but were stayed pending the outcome of the inquest [§4].
The inquest commenced on 10 October 2016, lasting seven days and concluding on 20 October 2016 [§5]. The jury returned a narrative verdict that the death resulted from methadone and alcohol intoxication, coupled with inadequate police policies, procedures, and training [§5]. Without the service of a letter of claim or particulars of claim, the civil claim was settled in March 2017 for £18,798 [§6]. A Bill of Costs was presented by the claimants, claiming approximately £122,000, which included costs related to the pre-inquest hearings, the inquest itself, and approximately £36,000 for civil claim documents work [§7]. The costs were assessed by Deputy Master Keens, who awarded £88,356.22 to the claimants [§1]. The defendant appealed this costs determination.
Costs Issues Before the Court
The appeal concerned whether the Deputy Master erred in awarding costs of £88,356.22 as proportionate under CPR 44.3(2) and 44.4, given that the claim settled for £18,798 before service of a letter of claim or particulars of claim. The specific costs issues included the recoverability of costs incurred in attending the pre-inquest hearings and the inquest as costs of the civil claim, and whether these costs were proportionate and reasonable [§2].
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- Ground 1 of the appeal alleged that the Deputy Master failed to correctly apply CPR 44.3, particularly regarding proportionality under CPR 44.3(2)(a), and treated the inquest as though it were the civil trial [§18-20].
- Ground 2 contended that the Deputy Master wrongly allowed the vast majority of inquest costs as costs of the claim by erroneously viewing the inquest as the “battleground” for the civil claim [§21-22]. Additionally, the defendant challenged specific items in the Bill of Costs, such as the level of legal representation and time claimed for various tasks, arguing they were not progressive of the civil claim or proportionate for evidence gathering [§22, §29].
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The Parties’ Positions
The defendant, represented by Mr Nicholas Bacon QC, submitted that the Deputy Master erred in law by allowing inquest costs as recoverable in the civil claim without sufficient regard to proportionality under CPR 44.3(2) [§24-25]. It was argued that the inquest served an inquisitorial purpose distinct from the adversarial civil claim, and only costs relevant to evidence gathering for the civil claim should be recoverable [§24]. The defendant relied on authorities including Roach v Home Office [2010] 2 WLR 746 and Ross v Owners of Bowbelle [1997] 2 Lloyd’s Rep 196, emphasising that costs must be proportionate to the matters in issue [§24-25]. Reference was made to Kazakhstan Kagazy Plc v Zhunus [2015] EWHC 404 for the proposition that recoverable costs should be the lowest amount reasonably expected for proficient case conduct [§26]. The defendant also challenged the allowance of costs for pre-inquest hearings, preparation, and document work, contending that these were not reasonably incurred for the civil claim and were disproportionate given the settlement value [§28-29].
The claimants, represented by Mr Roger Mallalieu, supported the Deputy Master’s decision, arguing that he correctly applied the legal principles for assessing costs [§30]. It was submitted that the costs of the inquest, including pre-inquest hearings, were incidental to the civil claim under Senior Courts Act 1981, section 51(1) and CPR 44, as they addressed issues relevant to the claim, such as the cause of death and police procedures [§32-34]. The claimants relied on Re Gibson’s Settlement Trusts [1981] Ch 179 and Roach, asserting that costs incurred for evidence gathering and issues relevant to the civil claim are recoverable [§34]. They emphasised that the claim involved matters of public interest beyond financial compensation, including systemic police failings and Article 2 breaches, which justified the costs [§38]. The claimants also noted that the defendant had accepted in principle that inquest attendance costs could be recoverable (though disputed their proportionality and extent), and that the Deputy Master’s reductions in the Bill of Costs demonstrated a proper exercise of discretion [§24, §37].
The Court’s Decision
Mrs Justice Slade DBE allowed the appeal in part. The court reaffirmed the Gibson and Roach principles, applying them within the CPR 44 proportionality regime to guide assessment of inquest costs [§44-48]. The court held that the Deputy Master did not err in principle in allowing costs for attendance at the inquest and pre-inquest hearings as recoverable in the civil claim, as these were relevant to issues such as the cause of death and police procedures, which were central to the claim [§52-56]. However, the Deputy Master erred in law in respect of items 68 and 69 of the Bill of Costs, which concerned civil claim documents work. The court found that the Deputy Master failed to decide which parts of the work claimed were relevant to pursuing the civil claim and, without this assessment, could not determine whether those costs were proportionate in terms of utility and amount [§62]. The broad brush approach failed to distinguish between costs incurred in different steps in the inquest, and the Deputy Master was not in a position to assess whether the costs were proportionately and reasonably incurred [§62].
The award for items 68 and 69 was set aside and remitted for reassessment by a costs judge other than Master Rowley, who would apply the principles of relevance and proportionality outlined in the judgment [§63]. Importantly, the court directed that the total costs award should be reassessed following the re-evaluation of items 68 and 69 to ensure overall proportionality [§73-74].
On Ground 1, the court found that the Deputy Master correctly considered proportionality under CPR 44.3(2) and 44.4, taking into account the importance of the matter to the parties and the public interest, which extended beyond the financial settlement [§64-66]. The court emphasised that the case concerned institutional police failings and Article 2 breaches, engaging the factor of “the importance of the matter to all the parties” under CPR 44.4(3)(c), not merely financial recovery [§66]. The reduction of the claimed costs from over £122,000 to £88,356.22 was within the Deputy Master’s discretion, and no further reduction for disproportionality was warranted, except for items 68 and 69 [§68]. The court emphasised that each case must be decided on its facts, and the Deputy Master’s approach was consistent with authorities such as Roach and Gibson, which remain applicable post-Jackson reforms [§44-48].
On Ground 2, the court rejected the defendant’s argument that the Deputy Master treated the inquest as the civil trial. While noting that the term “battleground” was infelicitous, Mrs Justice Slade held that the substance of the Deputy Master’s observation was correct – the inquest determined liability issues that enabled settlement without progressing the civil proceedings [§53, §67]. The costs for pre-inquest hearings were properly allowed as they involved engagement with issues relevant to the civil claim, such as expert evidence on causation and police safeguards [§54-56]. The challenges to other specific items in the Bill of Costs were largely dismissed, as the Deputy Master’s reductions and conclusions were within his discretionary bounds [§57-61]. The appeal was allowed only to the extent of the reassessment of items 68 and 69, with the costs of the appeal to be determined by the reassessing costs judge [§78].
Application of the Re Gibson’s Settlement Trusts Principles
Mrs Justice Slade reaffirmed the long-established Re Gibson’s Settlement Trusts principles—governing whether costs are ‘of and incidental’ to civil proceedings—and expressed them in practical, three-stage terms for use under CPR 44 [§69–70]. This formulation restates, rather than replaces, the Gibson approach:
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- Identify outstanding issues which are necessary to the civil claim in respect of which the claimant’s case would be advanced by participation in the inquest
- Identify what participation would assist with those issues in the civil claim
- Weigh the value of that assistance against the cost of pursuing that particular point in the inquest
The court emphasised that performing this exercise may be onerous but is necessary, and it may be prudent to stand back and consider whether total inquest participation costs are proportionate to utility and relevance to outstanding civil claim issues [§70]. The judgment provides a clear restatement of the Gibson and Roach principles within the modern proportionality context of CPR 44, rather than introducing a new test. Each case must be determined on its own facts [§47, §71].
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