The Coroner has no power to award costs of attending an inquest. So, where solicitors attend an inquest for the purpose of a watching brief in anticipation of bringing a civil claim, how can the attendant costs be recoverable in a civil claim for damages?
Section 51 of the Supreme Court Act 1981 provides that the costs of and "incidental to" civil proceedings are in the discretion of the court. In Re Gibson's Settlement Trusts [1981] Ch 179, it was held that pre-action costs were, in principle, "incidental" to the proceedings and covered by the court's discretion and identified “three strands of reasoning” to be applied:
What has become known as the Gibson test has been applied in various cases dealing with the question of recoverability. In Ross v Bowbelle (Owners) [1997] 1 WLR 1159, Clarke J rejected an argument on behalf of the paying parties that no costs of the inquest were recoverable. In that case negligence had been admitted before the inquest and it therefore followed that not all of the inquest costs were deemed to be incidental to civil proceedings, rather, only costs relating to determining the pre-death suffering and loss of life were allowed.
This approach was confirmed by Mr Justice Davis in Roach v Home Office [2009] EWHC 312 (QB) when he rejected the Home Office submission that the costs of one set of proceedings were never recoverable as costs of, and incidental to, another set of proceedings. Furthermore, in overturning Master Hurst’s earlier decision to allow the claimant to recover just 50% of the costs of attending the inquest, to reflect the dual role of assisting the coroner and obtaining evidence necessary to pursue the civil claim, he found that it was not appropriate to divide the costs of an inquest in this manner. Purpose would no doubt be a relevant consideration but it could not be decisive.
90% of the costs contained in the claimant’s bill of costs related to attending the inquest, and Mr Justice Davis made observations on proportionality at paragraph 60:
“There may well be cases…. where the costs of antecedent proceedings claimed as incidental costs are 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 will wish to consider very carefully the issue of proportionality. This situation is provided for in the Rules by CPR 44.4(2) (a) (and also Rule 44.5). If an assessment of disproportionality is made then costs will only be allowed if they were necessarily incurred and reasonable in amount. The observations of the Court of Appeal in Lowndes v The Home Office 2002 1 WLR 2450 will need to be borne in mind in this context. So here too there is another safeguard for paying parties.”
It is clear therefore that proportionality is key when considering what costs can be recovered and this was affirmed by Master Rowley in Amelda Helen Lynch (Representative of the Estate of Colette Lynch) and Others v Chief Constable of Warwickshire Police, Warwickshire County Council, Coventry and Warwickshire NHS Trust (2014) SCCO 14 November 2014.
Colette Lynch was killed by her former partner who had suffered mental health issues which had been known to the defendants. A claim was brought on behalf of the estate in 2008 and settlement was agreed at a mediation hearing in May 2012.
The inquest had been heard between 5th October and 18th December 2009 during which time the claimants were represented by a legal team comprising of senior and junior counsel, a partner and a trainee solicitor with appearances of 23 days, 38 days, 31 days and 38 days respectively. The claimants’ bill of costs amounted to £1.5million and contained costs of preparation for and attendance at the inquest at over £750,000.
Master Rowley found the claimants’ costs to be globally disproportionate. Having acknowledged that this was not a case which had been subject to costs management, he considered it inconceivable that any case managing judge would approve the approach adopted by the claimants as a proportionate method of pursuing the claim to a civil hearing.
He was of the view 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 (para 66):
“In no attendance outside an inquest would leading and junior counsel, a senior solicitor and trainee solicitor simultaneously spend time with the same witness taking their evidence. But, on 10 days of this inquest the full team attended. Even where there were only some of the team present, a senior solicitor or experienced counsel (or both) would not usually require a note taking assistant in addition to one or both of them when taking evidence from a witness: but that is the effect of gathering evidence at the inquest in the manner claimed in this Bill”
In light of the Coroners (Inquests) Rules 2013 referred to above, the pre-inquest disclosure in this case had been extensive. The defendant therefore contended that the claimants did not need to attend the inquest in order to plead their case as virtually all of the matters set out in the particulars of claim were covered by the pre-inquest disclosure. Whilst not suggesting that all of the costs of the inquest were irrecoverable, the defendants contended that they ought not to be allowed in the way that had occurred in previous cases and should be allowed on the basis of what was being done at any particular time in the inquest.
The defendants took a forensic approach and identified seven categories of work which should not be recoverable. Paragraph 69 of the judgment summarises the respective parties’ position:
“The Claimant’s approach is to take events as they happen and, as long as they were of some use and benefit in the civil claim, then they must be recoverable. The Defendants’ approach is to cut out periods of time which can be said to be incidental to the civil claim from the overall inquest process.”
Whilst accepting the difficulty of the various categories of work not always falling neatly into blocks of one day, Master Rowley preferred the approach put forward by the defendant and considered that it was appropriate to separate those parts of the inquest which were incidental to the civil claim and allow costs of only those parts.
He determined that certain categories of work did not fall within the Gibson criteria and were accordingly not recoverable:
• Attendance during the evidence of the claimants’ own witnesses;
• Attendance when no questions were asked by the claimants’ team;
• Attendance during the evidence of witnesses whom the coroner described as not being directly involved;
• Attendance during the evidence of the defendants’ systems witnesses.
Master Rowley stopped short of providing general guidelines and asserted that the conclusions reached related to this case alone. Accordingly, while inquest costs may be recovered, it is not an automatic occurrence. The question as to whether they are recoverable and in what amount is very case specific. However, given the “new” Jackson test of proportionality and applying the approach in Lynch, defendants can make significant in-roads in reducing their liability for inquest costs in the context of a civil claim.
As Master Rowley determined this case under the old Lownds test, he was bound to allow costs that were deemed necessary. However, had Lynch been heard today with the benefit of the new test, the result may have been very different. Proportionality now trumps necessity and reasonableness. Accordingly, having assessed the costs then stood back to take into account the factors in CPR 44.4(5) and determined whether the assessed costs bore a reasonable relationship to:
Master Rowley may have reduced the claimant’s bill even further to reach a sum that he considered proportionate.
In summary, for inquest costs to be recoverable they have to be relevant but also represent a proportionate method of gathering evidence for the civil claim. Given the emphasis on early disclosure the time necessarily spent by solicitors at an inquest which may properly be described as incidental to the civil claim should be substantially curtailed. This, coupled with the application of the new proportionality test, will surely mean lower inquests costs will be recoverable in cases going forwards especially where the prospective paying party raises it as an issue before the inquest takes place.
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