Pale Death beats equally at the poor man’s gate and at the palaces of kings.
Death is a reality and part of life. But for some it comes suddenly and in distressing circumstances. When a sudden death occurs, the coroner may determine to hold an inquest. The coroner’s jurisdiction is an ancient one. Established by the Articles of Eyre in 1194, it has evolved over the centuries and is now placed on a statutory footing by the Coroners and Justice Act 2009. The role of the inquest as noted by the Luce Report is
...primarily a factual account of the cause and circumstances of the death, an analysis of whether there were systemic failings which had they not existed might have prevented it, and how the activities of individuals bore on their death. The analysis should in suitable cases examine whether there was a real and immediate risk to life and whether the authorities took, or failed to take, reasonable steps to prevent it.
An inquest does not determine civil or criminal liability. But such considerations as a matter of practicality may loom large in the background, and determine the role taken at an inquest by interested parties, who may be particularly concerned to use the occasion of the inquest, perhaps as a means of forensic examination of the likely evidence and witnesses that will feature in the civil proceedings, or as part of the evidential enquiries into the merits of a civil action.
This can mean that the family of the deceased will wish to engage in the inquest process, and their lawyers retained for a potential civil action will appear or arrange representation at the inquest. The degree of engagement and representation can range widely, from the noting brief of the pupil barrister, to the deployment of leading and Junior counsel, if the stakes are high enough.
The question then arises as to how this part of a wider case can be funded: the coroner’s jurisdiction is one of the few areas where Legal Aid has survived, albeit in very restricted circumstances. The latest guidance can be found here: https://www.gov.uk/government/publications/legal-aid-exceptional-case-funding-form-and-guidance.
If the family do not qualify for or are not entitled to Legal Aid, and if they are unable to fund representation on a privately paid basis, then the question arises as to whether the costs incurred in the inquest process, can be included within the scope of a conditional fee agreement and claimed as part of the costs of the civil claim, later down the line when the civil case goes to trial or settles.
Section 51 of the Senior Courts Act 1981 permits the possibility of recovering such costs incurred in the coronial proceedings as part of the costs of civil proceedings, by the use of the enabling words “incidental”
(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.
This issue was thrown into stark relief, more than three decades ago in the litigation following the collision between the Marchioness pleasure cruiser and the Bowbelle in the early hours of 20th August 1989 on the River Thames, resulting in the deaths of 51 people. When the costs of the civil case were being taxed an issue arose as to whether the costs of attending the inquest could properly be included. In his judgment in The Bowbelle  2 LL.Rep. 196 Clarke J concluded:
“However, it does not follow that no costs of attending the inquest are recoverable. In the event, when the inquest was opened, the Director of Public Prosecutions delivered a notice of intention to prosecute the master of Bowbelle so that the coroner did not proceed with an inquiry into the causes of the collision. The inquest which took place at that time dealt with identification of the deceased, where they were found and the causes of death. The steering committee attended the inquest through Counsel, who was Mr Haddon-Cave. Master Hurst held that it was reasonable for the steering committee to take that step in order to help to establish what pre-death pain and suffering had been endured by those who lost their lives. A forensic pathologist was called in the case of each of the deceased and he was cross-examined by Mr Haddon-Cave on behalf of the steering committee. Master Hurst held that it was reasonable for the steering committee to co-ordinate the claimants, to instruct Counsel and to attend the inquest. I agree. That evidence was potentially relevant to the loss of life claims. It 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 are in my judgment recoverable. At present there is no basis for holding that Master Hurst’s approach to the figures was in any way wrong.”
The leading modern authority, upon the question of whether costs of engagement with the inquest process and attendance at it, are recoverable as part of the costs of subsequent civil proceedings is that concerning two appeals heard at the same time and reported as Roach v Home Office  EWHC 312 (QB).
That case considered and applied earlier authority, pre-dating that of The Bowbelle:
29. Next I was referred to the well known case of re Gibson’s Settlement Trusts  1 Ch.179. This is an important case because it seeks to marshall a number of relevant authorities and to set out some principles or guidelines (since widely followed) to be applied in assessing whether costs incurred for work done prior to any civil proceedings being commenced may be recoverable as costs of and incidental to the proceedings. In the course of his judgment, Sir Robert Megarry VC referred to a number of cases, including Pêcheries Ostendaises; Wright v Bennett (which the ViceChancellor explained at p.185D); and Envoy Farmers. His review of the authorities led him to conclude that there were at least three “strands of reasoning” to be applied: that of proving of use and service in the action; that of relevance to an issue; and that of attributability to the [paying parties’] conduct (p.186 H). He then helpfully explained that at some length.
The conclusion reached by the High Court was expressed as follows:
40. Mr Morgan advanced his proposition of principle in these terms. The rule, he said, is that the costs of one set of proceedings – although he did not offer a definition of “proceedings” for this purpose – are never recoverable as costs of and incidental to another set of proceedings. That, he submitted, was the rule and there was no exception. Accordingly, he said there was no jurisdiction to award such costs. (It may, in passing, be noted that such a rule would seem to preclude the Home Office itself from claiming any costs of attending an inquest as costs incidental to subsequent civil proceedings in a case where the Home Office succeeded in such civil proceedings with an order for costs in its favour.) The receiving parties, through Mr Post and Mr Westgate, disputed that there was any such rule. It is, however, to be noted that they disclaimed any assertion of any contrary “rule”. They did not seek, for example, to argue that such costs are always so recoverable. On the contrary, they said there is no rule as such and it all depended on the circumstances of each case: and it was therefore a matter for the assessment of the Costs Judge in each individual case. That indeed, they said, was in fact the safeguard to the paying party. Further, they submitted that Mr Morgan’s approach would have unsatisfactory implications in acting as a potential deterrent and thus as a limit on access to justice: which Parliament is to be taken as not having intended.
41. It is, as I see it, impossible to extract such a rule, as argued for by Mr Morgan, from the wording of section 51 itself. On the contrary, the wide wording of the section, as set out in subsections (1) and (3), is inimicable to there being such a rule or such a fetter on the court’s powers. Of course, in jurisdictional terms, I accept that the costs must be “of and incidental to” the civil proceedings to be recoverable at all. However, as Mr Morgan was constrained to accept, the existence of such a so called “rule” was inconsistent with the concession made by the Home Office in the Roach case before the Costs Judge that the costs of a noting brief could be allowed – a concession which Mr Morgan (who did not himself appear below) made clear that he did not seek to retract.
42. Mr Morgan’s asserted rule gives rise to yet further difficulties. He accepted that, where a solicitor did not attend the inquest, such solicitor, on behalf of his client, might well be able to claim as costs incidental to civil proceedings – and at all events was not precluded in principle from claiming – the costs of the solicitor prior to commencement of proceedings of interviewing and obtaining relevant proofs of evidence from witnesses who had given evidence at the inquest. But if that is so, then – as Deputy Costs Judge Rowley noted – there seems no reason in sense or in logic why the costs of instead attending the inquest to note the evidence (and, it may be, also to assess the witnesses) should be incapable of being allowed as incidental costs. Indeed one can readily envisage that in many cases such a course may be cheaper, and more useful, than the cost of proofing such witnesses afterwards. To assert, therefore, as Mr Morgan did, that the inquest had “nothing to do” with the civil claim cannot, as a general proposition, be correct. It may be that can in some respects be said of the purpose of an inquest (“who? when? where? how?”) taken on its own. No doubt too it can be said that an inquest would have occurred even if civil liability had been admitted prior to the inquest. But that tells one nothing conclusive where civil proceedings follow after an inquest and tells one nothing of the purpose or relevance of attendance at the inquest to the subsequent civil proceedings. The purpose of an inquest is not to be equated with the purpose (or relevance) of attendance at an inquest.
43. I therefore find it difficult to see any convincing rationale for Mr Morgan’s asserted rule. I can well see that where in one set of proceedings a court having power to order costs in terms declines to do so then such order cannot necessarily be trumped by seeking the self-same costs in subsequent proceedings as, purportedly, costs “of and incidental to” the subsequent proceedings. Wright v Bennett (supra) can be taken as an illustration of that. But that is not a situation comparable to these instant cases.
And in summary:
48. It follows that, in agreement with the Cost Judges in each of these cases, I consider that the approach taken by Clarke J in the Bowbelle was correct. Costs of attendance at an inquest are not incapable of being recoverable as costs incidental to subsequent civil proceedings. Nor does this give rise to any unprincipled approach – because the relevant principles, as conveniently set out in Gibson, are available to be applied by Costs Judges in a way appropriate to the circumstances of each case. It may also be remembered that Clarke J in fact disallowed some of the costs relating to the inquest claimed as costs incidental to the civil proceedings (the overall approach illustrating just how important the factor of relevance is). Mr Westgate in fact was, I think entitled to observe – as he did – that it was open in the instant case to the Home Office likewise to seek to avoid or minimise any potential liability for such costs here by admitting liability prior to the inquest. He and Mr Post were also entitled to observe that the inquests here in practice seem to have had the effect of causing the civil proceedings thereafter relatively speedily (and thereby in a way saving of some costs) to be compromised.
There have been numerous instances of cases decided at first instance, not only on the recoverability of inquest costs in civil proceedings, but the particular items incurred and their amount. These include: Lynch v Chief Constable of Warwickshire Police (Master Rowley SCCO 14th November 2014)Douglas v Ministry of Justice Master Leonard SCCO 9th October 2017Powell v Chief Constable of West Midlands Police (SCCO Master Gordon-Saker 11th June 2018).
Devotees of costs judgments will scrutinise these first instance decisions with care, extracting the nuances that led particular costs judges to conclude that attendance by leading counsel was recoverable or not, or that there was good reason to attend all the sitting days of the inquest, or not.
There have been two further decisions of the High Court which are of wider interest: in Fullick v Commisisoner of Police for the Metropolis  EWHC 1941 (QB) The case involved an interesting consideration of the importance of the definition of the issues that an inquest would consider, their relevance to a putative civil claim and the application of the principle of proportionality to the expenditure of costs in preparing for and attending an inquest:
52. Whilst the ‘battleground’ reference may have been unfortunate, the Deputy Master did not err in his conclusion that the costs attendance at the Inquest hearing were reasonably and proportionately incurred. Mr Robins for the Defendant had not challenged that costs of attendance at the Inquest by legal representatives of the Claimants was allowable. The challenge was to the amount of those costs. The cause of death and recommendations for changes in police procedure were relevant to the civil claim. The claim was for damages for breaches of Article 2 of the European Convention on Human Rights in relation to the death of Ms Jones at a police station. Evidence on the cause of death and actions and procedures of the police given in the Inquest and the verdict reached are relevant to those issues. Consideration should be given to whether all or only some of the steps in the Inquest proceedings are relevant to the civil claim. If they are, whether the costs incurred in participation by the Claimant in each of those steps is proportionate and reasonable. If some of those steps are agreed, such as the giving of certain evidence, it is unlikely to be proportionate or reasonable for a receiving party to attend a pre-hearing review to deal with agreed matters.
53. It was perhaps infelicitous for the Deputy Master to refer to the ‘inquest proceedings as the battleground for fighting out between the parties the issues that needed to be resolved’ in the civil proceedings. Whilst the term ‘battleground’ may be said to fail to recognise the difference between an inquest and an adversarial civil trial to determine liability, the import of the observation was open to the Deputy Master in relation to this Inquest. The Defendant had not conceded the cause of death or defects in their procedures. The Inquest jury delivered a verdict on the cause of death attributing it in part to defaults on the part of the Defendant: inadequate policies ,procedures and training. It was not suggested by the Defendant that these were not issues raised in the contemplated civil proceedings.
69. The reference by the Deputy Master to consideration of whether costs were proportionate to the issues is, in my view, of central importance to the assessment he was to make. The costs incurred by the Claimants in connection with the Inquest must be relevant to issues in the civil claim to be recoverable as costs in that claim. That requires identification of outstanding issues which are necessary to the civil claim in respect of which the Claimants’ case would be advanced by participation in the Inquest. The assessment also required the identification of what it was in that participation which would assist with the civil claim. The value of that assistance would then be weighed against the cost of pursuing that particular point in the Inquest.
70. Performing the exercise of identifying and evaluating the relevance and utility to the civil claim of participating in the Inquest may be onerous but in my judgment it is necessary. It may be necessary and would be prudent to stand back to consider whether the total costs of participation in the Inquest are proportionate to its utility and relevance to outstanding issues in the civil claim.
The most recent decision which is primarily concerned with the construction and effect of admissions that would render attendance at an inquest otiose is that of Greater Manchester Fire and Rescue Service v Veevers  EWHC 2550 (Comm)
4. During the assessment process, an issue arose as to whether the Respondent was entitled to recover the costs of preparing for and attending the inquest into Mr Hunt’s death. Those costs are substantial, about £141,000 out of a total bill of just over £334,000.
5. In a judgment handed down on 11th May 2020, Deputy District Judge Harris, sitting as the Regional Costs Judge for Manchester, held that the costs are in principle recoverable, subject to the detailed assessment of those costs. The Appellant appeals that decision with permission of His Honour Judge Platts granted on 10 July 2020.
The issue which was the dispute over principle was:
14. In its points of dispute, the Appellant stated that it had admitted culpability by letter dated 8th October 2015 (this seems to be an erroneous reference to the letter of 4th February 2016) and that this admission had been pleaded and relied upon in the Particulars of Claim. The Appellant asserts that, in light of the decisions in The Bowbelle, and Roach (both referred to in greater detail below), the costs of attendance at the inquest should not be recoverable.
The central question in the case was whether the “admissions” were in fact “admissions” or nebulously worded, appropriately caveated letters of comfort.
The court first of all restated the principles it would apply:
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.
It then went on to conclude that the “admissions” were not in fact “admissions” properly construed. They did not qualify as admissions within part 14 CPR. The Claimant would not have been entitled to enter judgment upon them, and accordingly the attendance upon the inquest, in principle, could be justified.