Judgment in The Commissioner of Police of the Metropolis v Idreess Malik Highlights Cost Principles for Public Authorities

Citation: [2023] EWHC 3213 (Admin)
Judgment on

Introduction

The case of The Commissioner of Police of the Metropolis v Idreess Malik concerns an appeal by the Commissioner of Police against the cost order awarded to Mr. Malik following an unsuccessful Stalking Protection Order (SPO) application. The judgment provides significant guidance on the principles surrounding costs orders against public authorities when exercising their functions. These principles carry implications for both future litigation conduct and the approach of public authorities in making applications related to their duties.

Key Facts

The basic factual matrix of the case centers on the Metropolitan Police’s application for both interim and final SPOs against Mr. Malik, which was ultimately unsuccessful at the Magistrates’ Court. Following the refusal to grant the final SPO, Mr. Malik applied for costs against the Commissioner, which the Magistrates’ Court granted in the amount of £17,487 plus VAT — a figure that significantly exceeded Mr. Malik’s actual legal costs due to an agreed cap at £7,400 inclusive of VAT.

The Bradford Principles

Central to this case are the principles established in a line of case law broadly known as the Bradford principles, pertaining to the discretion of courts to award costs against public authorities. These principles dictate:

  • The presumption that no costs order should be made against a public body exercising regulatory functions in the public interest unless they have acted unreasonably, dishonestly or in bad faith.
  • Costs are awarded only as an indemnity, and a party may only recover the actual amount liable to their legal representatives; hence the sum awarded for costs should not exceed the amount the party is bound to pay.
  • The overriding need to avoid a chilling effect on public authorities in carrying out their public functions for fear of exposure to undue financial prejudice if decisions are challenged.

Indemnity Principle

Specific to this case is the application of the indemnity principle, which was central to the court’s judgment. The Court relied on established law that a litigant is not entitled to recover more from their opponent in costs than they are legally obliged to pay their own legal counsel.

Reasonableness and Public Interest

The Court also scrutinized the conduct of the police in bringing forward the SPO application, noting that the public interest requires the police to pursue such applications responsibly, without the operation of hindsight or excessively exacting standards.

Outcomes

The High Court found that the Magistrates’ Court erred in its application of cost principles, particularly those pertaining to the Bradford principles and indemnity principle. The High Court held that:

  • The starting point for costs decisions involving public authorities in regulatory functions did not align with the authoritative guidance, notably that there should be no order as to costs unless additional factors justified otherwise.
  • The Magistrates’ Court wrongly assumed that the respondent was liable for the total cost claimed in the cost statement.
  • The actual cost burden on Mr. Malik did not exceed the normal financial prejudice inherent in litigation.

Accordingly, the High Court quashed the original costs order and substituted it with no order as to costs.

Conclusion

The judicial analysis in The Commissioner of Police of the Metropolis v Idreess Malik serves as a reminder to legal professionals and public authorities of the guiding principles when deciding on cost awards in the backdrop of public interest litigation. It confirms that public authorities are protected against routine cost orders to prevent a chilling effect on their willingness to carry out essential functions. Moreover, the case underscores the importance of the indemnity principle in cost recovery, reinforcing that claimants cannot obtain more in costs than they are liable to pay.