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Inquest costs - alive and kicking!
9 March 2009
Last week, the High Court ruled on the recovery of inquest
costs, overturning the generally accepted principle that
participation in an inquest fell outside the scope of civil
proceedings, thus prohibiting the recovery of all but a proportion
of inquest costs at Detailed Assessment.
The position as set out in King v Milton Keynes General
Hospital NHS Trust (SCCO, 2004) was that although a coroner
had no power to award costs in relation to inquests, lack of
jurisdiction did not deprive the court of awarding costs of
attending an inquest in any subsequent proceedings, if the costs
incurred were incidental to those proceedings.
In King, Master Gordon-Saker had held that in practice this
meant that the costs of attending an inquest to take notes and
question witnesses, in order to obtain information and evidence for
use in the subsequent civil claim for damages, were likely to be
recoverable. It was further held that the costs of persuading the
coroner to reach a particular verdict were not recoverable, nor
were the costs of adducing expert evidence, both of which were
effectively a solicitor/own client matter.
Although considerably persuasive, as a first instance decision,
King was not binding. In Roach v Home Office and
Matthews v Home Office [2009] EWHC (QB), the Senior Costs
Judge (in Roach) and Deputy Master Rowley (in Matthews) allowed 50%
of the claimant’s inquest costs. They found that the claimant’s
representation at the inquests was two-fold; to help the Coroner
and to gather evidence; the latter being properly recoverable as
part of the civil proceedings. The Home Office appealed the first
instance decisions, arguing that the Court had no jurisdiction
under Section 51 of the Supreme Court Act 1981 to award any inquest
costs.
Both appeals concerned the costs of representation at inquests
held following the suicides of Craig Roach and Anne Baker whilst in
custody. In Roach, the claimant had submitted a Bill of Costs of
£67,126.85, of which 90% related to the solicitor and counsel
attending the inquest. In Matthews, a Bill of £91,952.09 was
submitted, of which over £50,000 related to attendance and
representation at the inquest. The damages claims were settled for
£10,000 and £20,000 respectively.
Davis J rejected the Home Office’s argument, concluding that the
Court had jurisdiction to award inquest costs in subsequent civil
proceedings, and that participation at an inquest could not be
split in the way that the two Costs Judges had suggested. Davis J
therefore referred 100% of the inquest costs back to the Costs
Judges for assessment, subject to the tests of reasonableness and
proportionality.
Although the High Court was invited to provide guidelines as to
what is, or is not, recoverable, Davis J declined “… each case
should properly be decided by reference to its own circumstances.
...Better, I think, to leave it to Costs Judges to decide each case
on its own facts…”
Whilst this decision has to be taken on its own facts, the door
has clearly been opened for recovery of inquest costs in full.
Whilst the assessment of costs will always be at the ultimate
discretion of the Costs Judge, it does follow that post-Roach,
defendants are likely to bear a higher costs burden in claims
following a fatality which could potentially include a liability
for attendance and representation in any criminal proceedings.
Inquests cannot be viewed in isolation. The evidence gathered
from an inquest can contribute significantly to any subsequent
proceedings. Inquests, and preparing for inquests, additionally
allow parties to test the evidence and their case in advance of
civil proceedings. The tactics adopted in advance of the inquest
can have an important bearing on the way in which the inquest and
any subsequent claim proceeds. Where potential defendants are not
appropriately represented at the inquest, this is an opportunity
that may be missed.
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