Inquest costs

An old chestnut that still leaps out of the flames from time to time, is the question of to what degree (if at all) can the cost of preparation for and attendance at an inquest be recoverable in subsequent civil proceedings for the negligently caused death of the deceased.

The question arises particularly frequently in claims against the NHS (for understandable reasons) but can arise as part of the costs in any claim under the Fatal Accidents Act 1976.

Some years ago when the principle of proportionality had been reformulated into its post 1st April 2013 wording, and the sheen had not worn off,  I persuaded a costs judge that no inquest costs at all were recoverable: as the existence of a pre-action protocol for clinical negligence, the provision of written evidence by the coroner and correspondence with the NHS made it both unreasonable and disproportionate for any inquest costs to be  recovered at all.

In truth when considering these arguments a wider principle is in play, namely to what extent can the costs of other proceedings be recovered under a costs order made in narrowly prescribed civil proceedings?

The point can arise when considering proceedings taking place extra-territorially, or subsequent to a public inquiry or given the wide scope of the word “proceedings” which varies according to the context in which it is used, post Plevin, when it might be capable of arguing that costs incurred against one Defendant, might be recoverable from another Defendant notwithstanding the absence of a Bullock or Sanderson order.

A costs Order or deemed costs Order  has its source in section 51 of the Senior Courts Act 1981. Section 51 provides as follows:

(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.

Accordingly when the court considers what are the costs of the proceedings it does so on the basis that it considers the costs “of and incidental” to the proceedings: see Roach and Matthews v The Home Office [2009] EWHC 312 (QB) at paragraph 21.

Per the decision in Roach the costs of separate proceedings (in that case an inquest) can be recoverable in the instant proceedings where there is a costs Order providing they meet the criteria set out in Re Gibson’s Settlement Trusts [1981] 2 WLR 1, of proving of use and service in the action; of being of relevance to an issue; or being attributable to the paying parties’ conduct. As Davis J noted in Roach:

The final reported case, on this aspect of the argument, to which I was referred was the decision of Clarke J (as he then was), sitting with assessors, in The Bowbelle [1997] 2 LL.Rep. 196: the report as placed before me containing neither headnote nor list of cases cited. That case involved a review of costs arising out of the tragic collision in the River Thames in 1989 between the Bowbelle and the Marchioness, in which 51 people died. One of the items claimed was the costs of attending the inquest. Clarke J at p.207 referred to re Gibson’s Settlement Trusts and to the three strands of reasoning (described as “three prongs”) there set out. Clarke J rejected an argument on behalf of the paying parties that no costs of the inquest were recoverable. Clarke J did hold that not all the costs of attending the full inquest could fairly be regarded as of and incidental to civil proceedings against the shipowners: because negligence had by then been conceded. Likewise, he said that no costs relating to the cause of the collision (which the claimants wished to be investigated with a view to possible criminal proceedings) could be regarded as costs of and incidental to the proceedings against the shipowners. Clarke J went on, however, to say this:-

“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 same approach, in effect, was, as I see it, taken in the Contractreal case and explains why Arden LJ stated that, if the costs of the proceedings in respect of the service charge were recoverable as costs of and incidental to the proceedings for recovery of the rent arrears, it would be a case of “the tail wagging the dog” (paragraph 36): the costs were not “subordinate” to the costs of the action (paragraph 41). I appreciate that in some passages Arden LJ possibly refers to the quantum of costs so claimed as indicative of whether or not such costs might or might not be “incidental”. But I do not think Arden LJ was seeking to set out any general rule to the effect that where costs of prior proceedings are very great compared to the sum of money claimed in or costs of subsequent proceedings to which they are said to be incidental, then such costs, or part of them, can never be recovered as “incidental” costs purely on quantum grounds alone. Moreover, it may be repeated that in that case one of counsel’s arguments was that costs in one set of proceedings could never be “incidental to” costs of other proceedings (relying in particular on the Court of Appeal’s decision in Aiden Shipping). If that proposition – which in essentials is that now of Mr Morgan – was correct, it would have been a short route to the Court of Appeal’s conclusion. But self-evidently, by its reasoning, the Court of Appeal did not adopt that proposition. Thus Contractreal was, as was Envoy Farmers, a decision by reference to its own facts.

Accordingly, I am not bound by authority to accept the proposition for which Mr Morgan argued; and I do not think the general principle for which he argued can be extracted from the cases. Since I can see no other convincing rationale for such a proposition, I can see no other basis for restricting the operation of the wide language of section 51 itself and the extent of the Court’s jurisdiction. Nor does this leave a paying party without protection in such a case. On the contrary, the paying party has the protection of the evaluative assessment powers conferred by the statute and subordinate rules on the Costs Judge.

In many cases involving clinical negligence each of the three disjunctive prongs can often be said to be satisfied. A claimant has to investigate a claim. The same exercise of obtaining and considering this evidence, would have been relevant and necessary as it would be  relevant to the issue of negligence on the part of the and ultimately the incurrence of the inquest costs could be said be due to the conduct of the defendant.

However, although some inquest costs are usually recoverable, that does not mean that the costs judge will allow the costs of Leading Counsel, junior and solicitor in attendance at an inquest under full sail, or substantial amounts for preparation time. Often awards can be quite modest, not least because the modern inquest has moved on considerably in procedural terms over the last 15 years: for a good example of the arguments in action see the decision of Master Rowley in the case of Lynch v Chief Constable of Warwickshire Police 14th November 2014 SCCO Master Rowley.

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