Stewart & Anor v The Commissioner of Police of the Metropolis

Where parties achieve mixed success after a substantial trial, costs may be allocated by proportion rather than by analysing every issue and incident individually. The court should balance the outcome achieved, the issues pursued and failed, the significance of successful findings, and the need to further the overriding objective while avoiding disproportionate expenditure of public money. Costs may be made subject to detailed assessment where they are not agreed. Interest on costs may be awarded in the court’s discretion.

The claimants brought claims arising from several incidents involving the police. After a three-week jury trial, the findings were mixed. The claimants succeeded on some matters, including excessive force and flaws in the checking of material supporting search-warrant applications, but failed on allegations of malice, harassment, dishonesty, psychological damage and loss of earnings.

The court therefore had to determine the appropriate allocation of costs without undertaking an extensive issue-by-issue analysis of the jury’s findings.

1. Costs allocation. The court held that detailed analysis of each incident and finding would be imprecise, time-consuming and unjustified at public expense. The appropriate approach was to adopt a proportionate balancing exercise consistent with the overriding objective.
2. Assessment of the parties’ success. The claimants had established significant matters, including excessive force against a young man, flaws in the system for checking search-warrant material, and a late concession concerning an arrest made under a mistaken but genuine belief as to identity. They had nevertheless failed on substantial allegations and heads of loss, including malice, a campaign of harassment, malicious procurement of warrants, officer dishonesty, psychological damage and loss of earnings.
3. Order. The defendant was ordered to pay 35% of the claimants’ costs, subject to detailed assessment pursuant to paragraph 6 of the Community Legal Service (Funding) Order 2007 if not agreed. The claimants were ordered to pay 65% of the defendant’s costs, also subject to detailed assessment if not agreed.
4. Interest. Interest at 2% was awarded on both costs awards in the exercise of the court’s discretion. No interim order was considered necessary, and payment was directed by 23 June 2017.