The Commissioner of Police of the Metropolis v Idreess Malik

Where a public authority unsuccessfully brings proceedings in the public interest, the starting point may be no order as to costs where a routine costs risk could deter the authority from performing its statutory functions. The court must still examine whether the authority acted in bad faith, improperly or unreasonably, and whether other sufficient circumstances justify departure from that starting point.

Financial prejudice inherent in defending proceedings will ordinarily be insufficient. The indemnity principle also limits any award to the costs for which the successful party is actually liable. In stalking protection order proceedings, these principles apply because of the public interest in enabling the police to protect vulnerable persons without fear of substantial costs exposure.

The Commissioner appealed by case stated from Ealing Magistrates’ Court, which had refused an application for a stalking protection order but ordered the Commissioner to pay the respondent’s costs of £17,487 plus VAT.

The appeal raised whether the magistrates had correctly applied the costs principles in R (Perinpanathan) v City of Westminster Magistrates Court and whether the amount awarded was just and reasonable. The respondent conceded that the amount exceeded his contractual liability to his solicitors, which was capped at £7,400 inclusive of VAT.

1. Applicable costs principles. The principles derived from City of Bradford Metropolitan District Council v Booth, applied in Baxendale-Walker v Law Society and R (Perinpanathan) v City of Westminster Magistrates Court, apply to applications for stalking protection orders. Their rationale is the public interest in preventing a chilling effect on public authorities exercising statutory functions in good faith, reasonably and properly. The police’s protective functions under the Stalking Protection Act 2019 were especially important because the orders were intended to permit early intervention and protect vulnerable persons.
2. The starting point was that there should be no order as to costs. The magistrates had to scrutinise carefully whether the police acted unreasonably or improperly, without hindsight or an unduly exacting standard. Success alone, discussions about the strength of the evidence, or the ordinary cost of defending proceedings did not justify an order.
3. The magistrates had no proper evidential basis for finding that the police acted unreasonably. They had deliberately excluded the earlier bench’s reasons and the evidence, and the assertion that there was no evidence was inconsistent with the grant of an interim order. They also failed properly to weigh the policy considerations favouring no order and applied an incorrect approach to financial prejudice.
4. Any costs order was additionally constrained by the indemnity principle. A party cannot recover more than the amount payable to that party’s solicitor. The respondent’s recoverable liability was therefore £7,400 inclusive of VAT, not the much larger sum in the costs statement.
5. The appeal by case stated did not permit the court simply to reassess the merits and vary the order. The magistrates’ order was quashed. The court substituted no order as to costs; remittal would have been disproportionate and wasteful.

• High Court (Administrative Court): allowed the Commissioner’s appeal by case stated from the costs order of Ealing Magistrates’ Court, quashed that order and substituted no order as to costs.
• Ealing Magistrates’ Court: refused the stalking protection order and ordered the Commissioner to pay £17,487 plus VAT in costs.