Inquests blog series: Civil claims following inquests – case law on recovery of inquests costs in subsequent claims

There is no power available to coroners to award costs in inquests, but in certain circumstances litigants in civil proceedings may be able to recover their costs from an earlier inquest. This article aims to summarise some of the key legal authorities on the topic and to assist parties considering their potential liability for inquests costs in civil proceedings.

The court has a broad discretion derived from s.51(1) of the Senior Courts Act 1981, which states:

(1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in –

(a) the civil division of the Court of Appeal;

(b) the High Court;

(ba) the family court; and

(c) the county court,

shall be in the discretion of the court.

The three-stage test

When determining whether costs from previous proceedings, e.g. an inquest, are recoverable, the court will apply the three-stage test set down by Sir Robert Megarry V-C in Re Gibson’s Settlement Trusts [1981] Ch 179. The court will consider (1) whether there has been proof of use and service of work claimed in the action; (2) whether the costs incurred were of relevance to an issue; and (3) whether the costs were attributable to the defendant’s conduct.

Key legal authorities when considering costs in civil proceedings

In the decision of Jacqueline King v Milton Keynes General NHS Trust [2004] EWHC 9007 (SCCO), the court held that costs incurred in an inquest to obtain evidence for a subsequent civil claim were likely to be recoverable. At [29], Master Gordon-Sake held:

“It seems to me that the costs of attending an inquest (and asking questions) can be recoverable as costs incurred in the subsequent proceedings if the purpose – or a material purpose – of attending is to obtain evidence for the subsequent proceedings.”

However, costs incurred to “persuade the Coroner to reach a particular verdict” would not be recoverable. In making this distinction, the court affirmed the decision in The Bowbelle [1997] 2 LL.Rep. 196 (QB) that costs of an inquest will be recoverable if reasonably incurred and incidental to the subsequent civil claim.

In Roach v Home Office [2010] QB 256, Mr Justice Davis considered Re Gibson’s Settlement Trusts and The Bowbelle, a case which had also explored the principles from Re Gibson’s Settlement Trusts. His Lordship determined that the approach in The Bowbelle was correct and that the “costs of attendance at an inquest are not incapable of being recoverable as costs incidental to subsequent civil proceedings”, however each situation will be fact specific. Crucially, Davis J highlighted that it was open to the Home Office to have sought to avoid and/or minimise liability for costs by making admissions of liability prior to the inquest. The court was invited to lay down guidelines for recovery, but the court declined to do so, stating:

“It seems to me that the discretionary regime available to Costs Judges in this context, and the application of section 51 and Rule 44, will not be advantaged by further guidelines (so called): each case should properly be decided by reference to its own circumstances. […] Better, I think, to leave it to Costs Judges to decide each case on its own facts by reference to section 51 and the subordinate statutory rules and having regard to the principles indicated in Gibson.”

In Lynch v Chief Constable of Warwickshire [2014] 11 WLUK 442, the court declined to set out definitive guidelines for costs recoverability on the basis that it will be fact specific, but Master Rowley acknowledged that the nature of the judgment would essentially give rulings on recoverable areas of work.

Master Rowley observed that “cases involving long running inquests invariably stand the evidence gathering approach referred to in Roach on its head. Instead of it being a cost-effective method of gathering evidence, it becomes a disproportionately expensive way of doing so” (at [66]). In essence, the court confirmed that there ought to be scrutiny of costs claimed to determine whether those costs can be said to be “of and incidental to” subsequent civil proceedings.

On the particular facts of Lynch, Master Rowley considered attendance for the following times to be recoverable:

• • • Where the Claimants’ own witnesses were giving evidence.
    • Where witnesses are called but the Claimants’ team asks no questions of them.
    • Witness evidence which was said by the Coroner to be given by witnesses not directly involved (e.g., a call handler).
    • Systems witnesses (i.e., those who given evidence on the general system).
    • Witnesses who had previously given evidence to the IPCC/disciplinary hearing.

Master Rowley disallowed time spent listening to witness statements being read out and the ‘housekeeping’ aspects of the inquest. The court held that post-evidence gathering aspects (for instance: the summing up, questions to the jury, and the conclusion) were only recoverable if they satisfied the Gibson criteria. Although the Gibson criteria were not satisfied on the facts of Lynch, Master Rowley did not preclude the possibility of there being a case where those aspects could satisfy the Gibson criteria.

In Douglas v Ministry of Justice & Anor [2018] EWHC B2 (Costs), the court confirmed the approach that a claimant should be entitled to recover reasonable and proportionate costs of gathering evidence that would “allow her to present (and if necessary plead) her case against the Defendants” (at §97). Master Leonard allowed the costs of attending the inquests insofar as they involved participation in the securing of disclosure from the defendants and obtaining witness evidence, as this affected quantum. It is worth noting that, in Douglas, there had been a full, unqualified admission of liability to every claim alleged, including specific breaches of the ECHR.

In contrast to the decision in Lynch, Mrs Justice Slade, in Fullick v Commissioner of Police of the Metropolis [2019] EWHC 1941 (QB) held that the costs of attendance at two pre-inquest reviews were recoverable on the basis that the first PIR was the first opportunity to engage with the issues of concern (e.g. expert evidence) and the second PIR facilitated questions to the expert witness. Pre-inquest review hearings were also held to be recoverable in in Briley & Ors v Leicester Partnership NHS Trust & Ors [2023] EWHC 1470 (SCCO).

In Greater Manchester Fire & Rescue Service v Veevers [2020] EWHC 2550 (Comm), HHJ Pearce summarised the legal position in respect of recovery of inquest costs:

“55. Having regard to the decisions referred to above, the law in respect of the recovery of the costs in a civil claim for the preparation for and attendance at an inquest, in so far as those costs relate to the establishing of liability in a subsequent civil claim, can be summarised as follows:

(a) Inquest costs may be recoverable in so far as reasonable and proportionate, so long as they can properly be said to be incidental to the civil claim;

(b) Such costs will not be recoverable if liability is no longer in issue between the parties, since the costs are simply not incidental to something in issue in the civil claim;

(c) In determining whether liability is in issue, the court must look at all the circumstances of the case, but the central issue is likely to be whether the prospective defendant has admitted liability or otherwise indicated a willingness to satisfy the claim;

(d) Liability will not be in issue if it has been admitted since such an admission is binding unless the court subsequently permits it to be withdrawn pursuant to CPR 14.1A.

(e) However, the Costs Judge is entitled to look with care at anything less than an unqualified admission to see whether the prospective defendant’s position is one from which it may resile or which leaves matter in issue between the parties.

(f) In particular, if the defendant’s position is not one of unqualified admission in circumstances where such an admission could have been made, the Costs Judge may be entitled to find that the failure to make an unqualified admission justified the conclusion that the defendant might exercise its right to resile from the admission and that therefore the costs of the inquest could properly be said to be incidental to the civil claim.

(g) If the costs can be justified upon these principles, the mere fact that there are other reasons why the family of the deceased should wish to be represented at an inquest, most obviously to avoid the inequality of arms between unrepresented family members and a represented public body does not mean that the costs are not recoverable. It is enough that the attendance to secure relevant evidence in relation to matters in issues was a material purpose for the attendance.”

Considerations to reduce potential costs liability in the future

In sum, the phrase “of and incidental to” has been defined as attendance necessary for the purposes of evidence-gathering for a subsequent civil claim. This can extend to pre-inquest reviews when the attendance assists in deciding the issues, per Fullick. Despite there being general guidelines, the authorities are clear that each case will be determined on its facts. Alongside the numerous authorities on the recoverability of costs, it is important to remember that CPR r.44.3(2) will only permit costs that are proportionate to the matters in issue. The CPR is clear that costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred. The court will have significant regard to proportionality of costs, which means that it is unlikely that full costs would be recovered. It may assist parties to consider making pre-inquest admissions of liability to reduce potential costs liability later down the line.

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Authors

Lissy Verrall-Withers

Call 2021

Related areas

Inquests

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