Rare update on costs in civil protective orders and the future of the standard of proof
The judgment provides a helpful guide to rebutting respondents’ costs in police applications for civil protective orders in the Magistrates’ Courts.
Summary of the High Court decision in The Commissioner of Police of the Metropolis v Idreess Malik v Ealing Magistrates’ Court — the judgment for the hearing on 18 October 2023 was handed down on 14 December 2023 and provides a very helpful guide to rebutting respondents’ costs in police applications for civil protective orders in the Magistrates’ Courts.
The judgment covers the long-established line of authorities from Bradford to Perinpernathan as well as useful obiter regarding the standard of proof for stalking protection orders (‘SPOs’).
Costs
The key point to take away is that Perinpernathan is good law and has been expressly extended to SPOs. The decision confirms that the starting point for magistrates is that there should be no order for costs. The decision has reinforced the reasoning in Perinpernathan that it is crucial that police have acted honestly, reasonably and properly. Further, that there is a need to stand by honest, reasonable and apparently sound decisions in the public interest without the exposure to undue financial prejudice. It would be contrary to the public interest if, due to fear of financial consequences, it was decided not to make applications. Police have a duty to make applications and we say even more so if they are to protect vulnerable people.
Perinpernathan restated the case of Bradford which discussed that the risk of adverse costs orders being made, simply because properly brought proceedings were unsuccessful, might have a chilling effect on the exercise of regulatory obligations.
Paragraph 24 of this new judgment helpfully reminds us that these principles have been applied to cases of other civil protective orders including withdrawal of an anti-social behaviour order and a sexual offences protection order .
The decision has also clarified that the authority in Flynn Pharma, which is often used to limit Perinpanathan, emphasises Perinpanathan limitations whilst affirming the validity of the principle. Perinpanathan is not a complete discretion for avoiding costs and should properly be awarded if applications are improper or unreasonable.
The High Court has also confirmed that by awarding the respondent more costs than they were liable to pay was a breach of the indemnity principle of costs, therefore unlawful and subsequently quashed.
Standard of proof
The original matter that is the subject of this decision refers to the application failing as the evidence did not meet the criminal standard of proof. This judgment refers to the recent decision in Jones which suggests that the true position is that the civil standard should apply as there is no such thing as an ‘enhanced civil standard’ (as per McCann). This is yet to be tested in any higher courts.
Conclusion
We can be confident in the principles of Peripinathan, that adverse costs orders are the exception and only when it can be shown that applications were improper. Any costs orders must follow the indemnity principle and we can look forward to clarification of the standard of proof for SPOs in future decisions.
