Recovering the Costs of Attending Inquests

1. Since Roach & Anor v Home Office [2009] EWHC 312 (QB), there has been greater certainty that inquest costs may be recoverable by way of costs in subsequent civil proceedings.

2. However, both appeals in Roach concerned cases where there had been no admission of liability before the inquests took place.  Roach was also decided before the post-March 2013 proportionality test came into play.

3. In Douglas v Ministry of Justice and Care UK [2018] EWHC B2 (Costs), Master Leonard considered the recoverability of inquest costs where there had been admissions before the inquest was held.

The Facts

4. The case involved an 18 year old who committed suicide at HMP Belmarsh within the first month of a life sentence.  The Prisons and Probation Ombudsman investigated and found that Belmarsh was unsuitable for the deceased, who instead should have been returned to Feltham Young Offenders Institute where he had been before his sentencing.  The report identified a number of other failings at Belmarsh.

5. A claim form was issued before the expiry of the Human Rights Act 1998 limitation date (within 1 year of the death), and the claim was stayed pending the inquest.

6. 3 pre-inquest review hearings (‘PIRs’) were held, which considered the scope of the inquest, as well as matters of disclosure and witnesses.  Liability was admitted by both defendants after the third PIR.  The Claimant’s solicitor sought clarification on the extent of the admission.  Whilst the Defendants did not specify which alleged failings they accepted were negligent, and/or which infringed Article 2 rights, they did clarify that it was a ‘full admission’ on the claim that had been set out in the claim form.

7. The inquest jury was called 2 days after the clarification letter.  The inquest was heard over 3 weeks, and failings beyond those covered by the earlier Ombudsman report came to light.  The claim settled for £13,500 a few months after the conclusion of the inquest, but without Particulars of Claim having been served.  Costs of the inquest totalled £85,000.

8. The Defendants argued that liability had been admitted in full, and that the only investigatory purpose in attending the inquest was for quantum.  They also took issue with proportionality and reasonableness.

9. The Claimant argued that there was no admission as to whether there was any Article 2 breach, or the nature of it (unlike most negligence claims, the damages award in human rights claims can be influenced by the seriousness of the breach and the defendant’s response to the breach).  They also argued that the inquest conclusions were a more important Article 2 remedy than damages, and that representation on each day was necessary to inform the conclusions.

Judgment

10. Master Leonard’s judgment considered the recoverability of costs in principle, applying the test identified in Gibson’s Settlement Trusts [1981] 1 All ER 233, which is whether the work was:

• (A) Of use and service in the claim;
• (B) Relevant to the matters in issue in the claim; and
• (C) Attributable to the defendants’ conduct.

All 3 must be satisfied in order for costs to be awarded.

11. The judgment does not examine reasonableness and proportionality, which would be dealt with in the future.

12. It was held that the admission of liability was ‘full and unqualified’, and included all Article 2 breaches.  Whilst it was held that there was no basis for expecting that anything would emerge from the inquest that would significantly change what was likely to be a modest award of damages, Master Leonard said it would be wrong to disallow all time spent.  Whilst the new failings did not add much to quantum, they were not irrelevant.

What Was Recoverable?

13. Applying the Gibson tests, and notwithstanding that he considered that it was possible to have settled the claim prior to inquest, Master Leonard allowed recoverability of work relating to (i) disclosure and witness evidence of the defendants (but not the other parties), (ii) making submissions to enable a particular conclusion to be reached, (iii) receiving the jury’s conclusion, and (iv) reviewing the conclusion.

14. Master Leonard disallowed the costs of work relating to (i) apportionment of liability, (ii) general procedural and housekeeping matters of the inquest, (iii) the Coroner’s summing up, and (iv) waiting for the jury’s conclusion.

Practical Implications           

15. If it’s an Article 2 inquest and/or there is a Human Rights Act 1998 element to the civil claim, there is a greater likelihood that the claimant will recover at least some inquest costs, even if there has been an extensive admission of liability before the inquest.

16. If there is no Human Rights Act element to the inquest or subsequent claim, recovering inquest costs following an admission of liability is much less likely.  If there has been no admission then the prospects of costs recovery are good, even if the Human Rights Act is not engaged.

17. Master Leonard’s judgment offers practitioners a useful indication of the categories of inquest work that are likely to be recoverable following an admission of liability.  It may enable practitioners to target attendance only on specific days of lengthy inquests, although of course often this will not be practical.

18. Whilst proportionality was not dealt with by Master Leonard, CPR 44.3(5) provides that the sums in issue in a claim is only 1 of the 5 factors in the proportionality test.  CPR 44.3(5)(e) provides that “any wider factors involved in the proceedings, such as reputation or public importance” must also be considered when determining the proportionality of costs.

19. Whilst it is important to bear in mind that ‘the proceedings’ are the claim and not the inquest, the fact that the civil claim concerns circumstances of a death and/or an infringement of an ECHR right is an argument for greater costs recovery, notwithstanding that the claim was only for a modest sum of damages.