COSTS AT THE END OF THE CASE – WHO IS THE REAL WINNER? (AND MORE ABOUT FAILING TO PROVE DAMAGES)

It is uncertain how much a three week jury trial in the High Court will cost.  It is certain that it costs a great deal more than the awards of £5,400 and £5,700 Mrs Justice McGowan awarded to the claimants at the end of such a trial in Stewart & Chergui -v- The Commissioner of Police for the Metropolis [2017] EWHC 921 (QB). That is why the subsequent judgment on costs at [2017] EWHC 1307 (QB) is of such practical importance. The first judgment also shows another case where claimants failed to adduce evidence to prove damages. This, in turn, may well have had an impact on the subsequent decision in relation to costs.

“The most efficient way in which to deal with the issue of costs and to avoid any greater use of public money is to take an approach based on proportion. That requires a balancing exercise. It will not be absolutely precise but it will attempt to meet the overriding objective.”

THE CASE

The claimants brought an action against the defendant police authority. The action was a jury trial in the High Court and lasted three weeks.  The jury accepted some of the claimants’ case but not all. The judge awarded £5,500 to the first claimant and £5,700 to the second.

“PROVING THINGS”:  A TOTAL FAILURE TO PROVE SPECIAL DAMAGES

Before looking at the judgment on costs it is worthwhile looking at the judge’s comments on the claimants’ claim for special damages.  It is another example of a failure to adduce evidence in support of damages.

“Special Damages

1. The evidence given by both Claimants was totally unsatisfactory on the question of special damages. A factor recognised in the written submissions in which the sums claimed are reduced by 50% from the original claim. The First Claimant produced some taxi receipts which did not go to support the contention she raised. Her evidence that she was too frightened to leave the flat unless by taxi was frankly incredible. The receipts demonstrated return taxi journeys from shopping trips. Particularly as this fear was not something that she had raised with her doctor or the psychiatrist specifically instructed in these proceedings. The Second Claimant is the First Claimant’s carer but does not seem to have travelled with her in her taxi journeys. I will not speculate as to where the inspiration for this claim emanated but it is without merit.

2. Precisely the same criticism applies to the claim made by her on behalf of the Second Claimant for taxi fares to and from south east London to visit his father. He said that he too was too scared to venture out in his immediate neighbourhood but did not begin to explain why that would necessitate taking a taxi across London.

3. As mentioned above psychiatric evidence was called on behalf of the First Claimant. Dr Bowers gave evidence of his diagnosis based on an interview with the First Claimant on 1 August 2014 for one hour. He only had the information which she provided about the incidents, tailored by her to enhance her claim. He described her as suffering from stress caused by “prolonged and protracted intrusions into her personal space”. He found that she had previously suffered from depressive symptoms “in response to life’s stressors”. He had been asked to opine on her inability to attend courses, at that stage there was a claim for loss on this basis. It was clear that he had not previously seen all her other medical records as he was not aware that other causes, such as dizzy spells, had been the explanation for her non-attendance. He said that “absent any police action she would have needed anti-depressant” medication anyway. The sum of £2,000 is claimed for a series of privately funded counselling sessions to be carried out at some unspecified date in the future. No evidence was called to show that she had sought treatment after that diagnosis in 2014 at the hearing in 2016. I do not find any evidential basis upon which that claim is made out.”

THE JUDGMENT ON COSTS

Mrs Justice McGowan:

1. The final issue in this case is costs. The parties have provided detailed written submissions seeking all their costs or, in the alternative making small concessions.

2. After a trial lasting three weeks the jury’s findings were mixed in relation to each incident. Picking through each event to determine costs on the findings would achieve an imprecise result and take an enormous amount of time. All parties are publicly funded and any further minute analysis of every aspect of the case cannot be justified at the public’s expense.

3. The Claimants’ sought that the case be tried by a jury in the High Court on the issue, amongst others, of policing policy, that was not pursued. It was pleaded but never put to any witness that the Police had engaged in a campaign of harassment. It was not established that the search warrants had been obtained maliciously. Nor was it proved that the original incident was based on the dishonesty of an officer who lied about the reasons given for an arrest and dishonestly, alone or with others, attributed a wrap of cannabis taken from somewhere else to the second Claimant. The first Claimant failed in her claim for psychological damage and loss of earnings.

4. The Claimants succeeded on a number of points and these included a significant act of misconduct in the use of excessive force against a young man. Further, it was demonstrated that the system for the checking of material upon which the applications for search warrants was made was flawed. The concession that the arrest of the second Defendant in the mistaken but genuine belief that he was his elder brother was made late in the course of the hearing.

5. Each party has won and lost points on all incidents. The Claimants have failed to prove any degree of malice in the conduct of an individual officer or the Police Service. They have not proved the basis for the substantial sums sought for psychological damage.

6. The most efficient way in which to deal with the issue of costs and to avoid any greater use of public money is to take an approach based on proportion. That requires a balancing exercise. It will not be absolutely precise but it will attempt to meet the overriding objective.

7. The Defendant is to pay 35% of the Claimants’ costs following detailed assessment pursuant to paragraph 6 of the Community Legal Service (Funding) Order 2007, if not agreed. The Claimants are to pay 65% of the Defendant’s costs following detailed assessment, if not agreed. Interest at the rate of 2% on both awards is appropriate in the exercise of my discretion. I cannot see, on the facts of this case, that an interim order is required. The awards should be paid by 23^rd June 2017. The order should be drafted to reflect the sums of interest to be paid.