Inquest Costs In Subsequent Civil Proceedings (Update)
The question as to whether costs of an inquest can be recovered in subsequent civil proceedings has now been determined by His Honourable Mr Justice Davies in the cases of Roache v The Home Office and Matthews v The Home Office [2009] EWHC 312 QB.
Previous case law had given practitioners guidelines on the issues of cases but there remained uncertainty as to the recoverability of costs.
Background
In the case of King v Milton Keynes General NHS Trust [2004] judgment was given by Master Gordon-Saker. The background to this case was that in August 2002 Robert Gadd was admitted to the Milton Keynes General Hospital for an angioplasty of the right external iliac artery. Mr Gadd subsequently developed a haemorrhage and the following day he suffered a cardiac arrest and died. Solicitors were instructed to investigate a potential clinical negligence claim. The claim was restricted to bereavement damages which at the time were in the sum of £10,000. The solicitors obtained a report from an independent Consultant in Intensive Care.
An inquest was convened and the Estate’s solicitors invited the Coroner to hear evidence from their independent Consultant in Intensive Care. The Coroner agreed. The Estate’s solicitor participated fully in the inquest questioning the witnesses and making both oral and written submissions. A verdict of systems neglect was recorded.
After the inquest the civil claim for bereavement damages was accepted by the NHS Trust. However, the Trust refused to pay for the cost relating to the attendance and representation at the inquest. The solicitors for the Trust argued that:-
a. There was no jurisdiction to allow inquest costs within the cost of subsequent civil proceedings. This was derived from the proposition that costs incurred in one set of proceedings cannot be recovered in another and
b. Inquest costs should not be allowed in this case.
The judgement of Clarke J in the Bowbelle 1997 2 Lloyds Report 196 (QBD) was considered by Master Gordon-Saker.
Clarke J stated in the Bowbelle case that he agreed with Master Hurst’s decision at first instance that “It was reasonable for the steering committee to coordinate the claimants to instruct counsel and to attend the inquest”. The evidence at the inquest was relevant to the loss of life claims and it therefore follows that unless there are particular costs which are not fairly referable to the attendance at the inquest for that purpose, reasonable costs of attending the inquest were recoverable.
Master Gordon-Saker also considered the case of Stewart & Howard v Medway NHS Trust in which reasonable costs of attending an inquest were also allowed.
Master Gordon-Saker concluded that whilst he was not bound by the judgment in Stewart & Howard v Medway NHS Trust, he was bound by the decision of the Bowbelle case. He therefore concluded that where a party in subsequent civil proceedings seeks to recover costs of attending and being represented at an earlier inquest he is not seeking to recover the costs of the inquest – rather he is seeking to recover costs of and incidental to the subsequent proceedings. If the costs of attending the inquest were incidental to the subsequent proceedings they were recoverable providing they were reasonable in amounts and proportionate.
In the King case Master Gordon-Saker therefore allowed the Estate’s solicitors costs for attending the inquest and questioning the witnesses and taking notes. He disallowed the costs of work done to persuade the Coroner to reach a particular verdict as it was not work done with a purpose of obtaining information or evidence for the subsequent civil claim. Nor was the cost of adducing evidence from the independent Consultant in Intensive Care recoverable.
In the case of Roache v The Home Office and Matthews v The Home Office judgment was given on 25 February 2009.
Both cases arose out of death in custody. The Home Office argued that there was a binding rule that costs incurred in a prior proceeding, namely the inquest – could not be recovered in subsequent proceedings. The Defendants contended that the costs judges had no jurisdiction to allow the recoverability of the costs of participation in inquests either in part or in full.
The background to the Roache and Matthews cases were similar. Both involved young persons who were known to be drug addicts. Mr Roache and Anna Baker (daughter of Mrs Matthews) were held in custody and during their time in custody they hung themselves.
At the inquests for which the families had obtained exceptional funding from the Legal Services Commission for attendance at the inquest, it was found that prison staff had a total lack of awareness and training in the management of persons at risk of self harm and suicide whilst detoxifying.
In subsequent civil proceedings liability was conceded with Roache’s Estate receiving £10,000 in compensation and Miss Baker’s Estate receiving £20,000.
The legal costs (including representation at the inquest) for Roache was £67,126 (90% attributed to representation at the inquest) and £91,952 for Matthews (just over 50% attributed to the representation at the inquest).
The Honourable Mr Justice Davies gave judgment on appeal in relation to the costs of the inquest.
He noted that there was no power available to Coroners to make an award of costs at inquests. Further, that Section 51 of Supreme Court Act 1981 as amended, provided inter alia that costs of and incidental to all proceedings shall be in the discretion of the Court. The Defendant’s Counsel in the Matthews case submitted that the inquest was required to take place and would have done so irrespective of any civil claim. Moreover, he further opined that an inquest was not a court proceeding and Parliament had not given Coroners power to award costs. The costs incurred were incidental to the inquest but not to the civil proceedings and that the courts could therefore not make an order for their recovery as costs of and incidental to the civil proceedings. The Defendant’s Counsel relied on (inter alia) the cases of Wright v Bennett [1948] 1KB and Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965 (the latter had not been cited to Clarke J in the Bowbelle case).
Mr Justice Davies considered that the approach taken by Clarke J in the Bowbelle case and concluded that the same was correct. He stated that he could find no binding rule that costs incurred in a prior proceeding could not be recovered in subsequent proceedings. On the contrary, he found that the wide wording of Section 51 of the Supreme Court’s Act as set out in Sections 1 and 3 was inimical to there being such a rule or such a fetter on the Court’s powers.
Mr Justice Davies also stated that he could not see why the existence of legal aid funding for the attendance at the inquest should give rise to any different outcome as compared to the attendance at the inquest being say privately funded.
On the matter of proportionality Mr Justice Davies stated that it was a matter for the Costs Judge where the costs of the 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, to consider as reasonable.
Summary
The decision in Roache and Matthews therefore establishes that the cost of attendance at and participation in inquests may, subject to relevance and the usual principles of reasonableness and proportionality, be recovered in civil proceedings.
This decision is important for all personal injury, clinical negligence and HRA practitioners.