Costs—Attendance at coroner’s inquest— Recoverability

Queen’s Bench Division, Davis J sitting with Assessors (Master Wright and Mr R Carter) 25 Feb 2009

Costs of attendance at a coroner’s inquest are capable of being recoverable as costs incidental to subsequent civil proceedings. Further, there is no binding authority for the proposition that the costs of one set of proceedings are never recoverable as costs of and incidental to another set of proceedings.

Andrew Post (instructed by Hodge Jones & Allen) for the receiving party in the first appeal. Martin Westgate (instructed by Bhatt Murphy Solicitors) for the receiving party in the second appeal. Jeremy Morgan QC and Benjamin Williams (instructed by the Treasury Solicitor) for the Home Office.

Two appeals before the court raised the common issue of whether costs of attending an inquest could be recovered by way of costs in subsequent civil proceedings. Both cases concerned deaths in custody. In each instance, proceedings were brought by relatives of the deceased following adverse comments about the Home Office in the coroner’s inquest.

The first case settled on the basis that the relatives should receive their reasonable costs: 90% of their bill of costs was attributed to the attendance of counsel and solicitors at the inquest. The Home Office challenged the reasonableness of the bill.

The senior costs judge decided that the receiving party should have half of the inquest costs, on the basis that the role of the legal representatives at the inquest had fallen in to two equal parts, namely, assisting the coroner and obtaining the evidence necessary to pursue the civil claim. The receiving party appealed and the Home Office cross-appealed.

In the second appeal, a publicly funded civil action was brought after the inquest. Liability was admitted and the Home Office ordered to pay the relatives’ costs. The costs judge found the cost of representation at the inquest recoverable in principle, which was not affected by the fact of the public funding. The Home Office appealed.

Davis J:
It was common ground that there was no power available to the coroners to make an award as to costs of those inquests. So far as the civil proceedings were concerned, the position was governed by s 51 of the Supreme Court Act 1981 (SCA 1981). That, in the relevant respects, provided: “(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; and c) any county court, shall be in the discretion of the court...(3) The court shall have full power to determine by whom and to what extent the costs are to be paid...”

It was accepted that the orders for costs made in the proceedings were to be taken as including costs of and incidental to the proceedings, the assessments being on the standard basis. By CPR 44.4(1), costs would not be allowed “which have been unreasonably incurred or are unreasonable in amount”. The receiving party submitted that Parliament had deliberately conferred a broad discretion on the court; and for that reason alone it was not permissible for there to be an absolute exception to the operation of the section of the kind advocated by the Home Office.

His lordship considered Lowndes v The Home Office, Aiden Shipping Co Ltd v Interbulk Ltd, The Vimeira (No 2) [1986] 2 All ER 409; Pecheries Ostenddaises SA v Merchants’ Marine Insurance Co [1928] All ER Rep 174; Frankenburg v Famous Lasky Film Service Ltd [1930] All ER Rep 364; Wright v Bennett [1948] 1 All ER 410; Department of Health and Social Security v Envoy Farmers Ltd [1976] 2 All ER 173; and Gibson’s Settlement Trusts, Re, [1981] 1 All ER 233.

The Home Office contended that as a matter of principle the costs of one set of proceedings were never recoverable as costs of and incidental to another set of proceedings. It was impossible to extract such a rule from the wording of s 51 itself. On the contrary, the wide wording of the section was inimicable to there being such a rule.

The authorities which his lordship had considered did not require the Home Office’s proposition. Since there was no other convincing rationale for such a proposition, there was no other basis for restricting the operation of the wide language of s 51 itself and the extent of the court’s jurisdiction. Nor did that leave a paying party without protection in such a case. On the contrary, the paying party had the protection of the evaluative assessment powers conferred by the statute and subordinate rules on the costs judge. Nor did that give rise to any unprincipled approach—because the relevant principles, as conveniently set out in Gibson, were available to be applied by costs judges in a way appropriate to the circumstances of each case.

His lordship then dealt with the appeals on their facts. He added an observation on the question of proportionality. There might well be cases where the costs of antecedent proceedings claimed as incidental costs were so large by reference to the amount of damages at stake and/or the direct costs of the subsequent civil proceedings, if taken entirely on their own, that a costs judge would wish to consider very carefully the issue of proportionality.

If an assessment of disproportionality was made then costs would only be allowed if they were necessarily incurred and reasonable in amount. The observations of the Court of Appeal in Lowndes would need to be borne in mind in that context. So there was another safeguard for paying parties.