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In Powell & Ors v The Chief Constable of West Midlands Police [2018] EWHC B12 (Costs)

the Chief Costs Master was dealing with issues of proportionality, hourly rates and the recoverability of costs claimed for attending the prosecution of the defendant’s police officers in the Crown Court, attending the Inquest into the death of Mr Powell and pursuing a complaint to the Independent Police Complaints Commission.

The police officers were acquitted of all charges and the Independent Police Complaints Commission then decided not to pursue disciplinary charges.

However, the Inquest concluded that, on a balance of probabilities, Mr Powell had been transported in the police van on his side and then on his front, that he died in the 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.

Eventually civil proceedings were settled by the defendant agreeing to pay damages of £300,000, accepting the verdict of the jury at the Inquest and apologising unreservedly.

The defendant published a 96 page document of lessons learned and agreed to pay the claimants’ costs of the claims “notwithstanding any orders of the court to the contrary”.

The costs claimed totalled £1,603,380.

The private, solicitor and own client retainer rates were:

  • partner –                             £350 an hour
  • assistant solicitor –             £270 an hour
  • other assistants –                £140 an hour

As to proportionality, the proceedings where commenced before 1 April 2013 and therefore the old tests under the then CPR 44.4(2) and CPR 44.5 applied, and the leading case on those provisions is

Home Office v Lownds [2002] EWCA Civ 365 (21st March, 2002) .

This was clearly a case where factors other than money were very significant, including the importance of the matter to the parties, which was a specific test under CPR 44.5, and was also of public importance.

Of the costs claimed the costs of attending the criminal trial were around £138,000 and the costs of attending the Inquest were around £300,000.

In addition disbursements of around £350,000, mainly counsel’s fees, were incurred in relation to the Inquest.

Here the Chief Costs Master said:

The pre-2013 test of proportionality like its successor, did not have any formula for deciding what figure would be proportionate built into it.”

The court held that even under the less stringent pre-2013 test the costs were disproportionate.

In relation to the criminal proceedings the court held that it was both reasonable and necessary for the solicitors to attend the criminal trial and that a transcript alone would not suffice as the person attending court could report back on the demeanour of the witnesses, which would not come across in the transcripts.

The Costs Master pointed out that no competent solicitor instructed to bring a civil claim arising out of a death in custody would not attend the criminal trial of the officers involved where the prosecution arose out of their treatment of the deceased in the hours prior to his death.

In relation to the complaint of the Independent Police Complaints Commission, the Costs Master held that these were not recoverable as the complaints and the outcome were not of use and service in the civil claim, nor relevant to it. The work done in relation to these complaints was not necessary within the Lownds sense.

In relation to Inquests there are a number of authorities, which the Chief Costs Master considered and on the facts of this case held that in principle the costs of attending the Inquest were recoverable.

Level of Fee Earner

Two senior junior counsel and a senior and a junior fee earner attended the Inquest and the Costs Master held that it was only necessary for one senior junior counsel and a junior fee earner from the solicitor’s office to be present, although it would be reasonable and necessary for the senior lawyer from the solicitor’s office to be present during important parts of the evidence.

In relation to the Crown Court proceedings only one junior fee earner needed to be present.

The Hourly Rate

The actual rates claimed were:

  • Grade A –                                                            £350 an hour
  • Grade C –                                                            £226 an hour
  • Grade D –                                                            £138 an hour

These rates covered the 11 year period from 2005 until 2016, over which the work was carried out.

Here the Costs Judge, applying the test in

Wraith v Sheffield Forgemasters Ltd [1998] 1 WLR 132

held that it was reasonable and necessary for the claimants to instruct a firm of solicitors in Central London, with the experience of this type of case, despite the higher hourly rates that will be charged.

The Costs Judge split the bill into different parts, reflecting the dates when the work was done, but of interest to lawyers now will be the rates allowed for post-2011 work, which were:

  • Grade A –                                                            £335 an hour
  • Grade C –                                                            £220 an hour
  • Grade D –                                                            £130 an hour

Had this not been the case warranting Central London solicitors, the judge would have allowed, for post-2011 work:

  • Grade A –                                                            £250 an hour
  • Grade C –                                                            £200 an hour
  • Grade D –                                                            £120 an hour


Most of this decision makes perfect sense, but in a case of this complexity and importance, it is disturbing that guideline hourly rates are utilised at all, and in the words of the Costs Judge are used “both as a starting point and as a cross-check”.

Not only were guideline hourly rates never designed for cases like this, but they have not been increased since 2010, and even with a low level of inflation this means that they are worth a lot less than they were in 2010.


Written by kerryunderwood

August 1, 2018 at 8:33 am

Posted in Uncategorized

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