Russell Fortt and Conor Monighan appear in a significant High Court case concerning Civil Orders

15 December 2023

… “The principles identified in the Bradford case have not previously been held to apply to a case of the present kind. In our judgment, however, the Commissioner was correct to submit that they do apply” …

In Commissioner of Police of the Metropolis v Malik [2023] EWHC 3213 (Admin), the High Court ruled for the first time that the Perinpanathan/Bradford cost principles apply to Stalking Protection Order applications made by the police. It also commented (obiter) on the standard of proof to be applied to such applications.

The judgment is therefore essential reading for those involved in applying for protective civil orders.

The Facts

Following an unsuccessful SPO application, Ealing Magistrates’ Court ordered the Commissioner to pay the Respondent’s costs in the sum of £17,487 plus VAT. The Respondent had, in fact, incurred the lesser amount of £7,400 (inc. VAT) in legal fees.

The Commissioner brought an appeal by way of case stated. It argued, in essence, that: (i) the costs award breached the indemnity principle; and (ii) that the Magistrates’ decision failed to take into account/ breached the principles contained within R (Perinpanathan) v City of Westminster Magistrates Court [2010] EWCA Civ 40.

Perinpanathan concerned an unsuccessful application for cash forfeiture brought under the Proceeds of Crime Act 2002. There the Court of Appeal had dismissed an application for judicial review against the Magistrates’ decision not to award costs against the police and stated:

“(5) Where the principle applies, and the party opposing the order sought by the public authority has been successful, in relation to costs the starting point and default position is that no order should be made. (6) A successful private party to proceedings to which the principle applies may none the less be awarded all or part of his costs if the conduct of the public authority in question justifies it. (7) Other facts relevant to the exercise of the discretion conferred by the applicable procedural rules may also justify an order for costs. It would not be sensible to try exhaustively to define such matters, and I do not propose to do so.”

Decision

Breach of the Indemnity Principle

The High Court agreed that the Magistrates’ decision to award costs in excess of the amount the Respondent had actually incurred was a breach of the indemnity principle. The decision was therefore unlawful and was quashed [2; 36].

Continued Validity and Application of Perinpanathan

The High Court held, for the first time, that the principles outlined in the Perinpanathan line of case law apply to SPO applications [21]. It confirmed that Competition and Markets Authority v Flynn Pharma [2022] UKSC 14, which some have suggested limited or even negated the Perinpanathan principles, in fact “affirmed the validity of the principle […] whilst emphasising its limits” [13].

The court extended the Perinpanathan principles to SPO applications. It ruled that the “underlying rationale” of that decision applies equally to SPO applications – i.e. that there is an “important public interest in ensuring that public authorities are not deterred from discharging the functions conferred upon them for fear that they will be at risk of a substantial costs order even if they act in good faith, reasonably and properly” [21]. It explained that “police functions are of special importance to the physical and in some cases psychological wellbeing of the population” [22].

Standard of Proof

The Statutory Guidance on SPO applications states it is “likely” courts will apply the criminal standard of proof when determining whether a person has carried out an act associated with stalking. The court noted (obiter), that “Jones v Birmingham City Council [2023] UKSC 27 suggests that the true position may be that the civil standard applies” [28]. This is a matter which has yet to be tested in the higher courts.

Russell Fortt and Conor Monighan represented the Commissioner.


Authors

Russell Fortt

Call 1999

Conor Monighan

Call 2019

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