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King v Milton Keynes General NHS Trust, Supreme Court Costs Office, 13 May 2004

16 June 2004
The issues

Costs – Whether Inquest Costs Recoverable and Subsequent Civil Proceedings

The facts

On 20th August 2002 Robert Gadd was admitted to the Milton Keynes General Hospital as an in-patient for an angioplasty of the right external iliac artery. He developed a haemorrhage. The next day he suffered a cardiac arrest and died.

Mr Gadd’s family consulted a firm of solicitors who were concerned about the level of care Mr Gadd had received. The families’ solicitors obtained the deceased’s medical records and sought an opinion from Dr Bell, a Consultant in intensive care and anaesthia. An inquest was convened on 8th November 2002 and adjourned to 6th and 7th March 2003. The families’ solicitor attended the inquest and urged the Coroner to call Dr Bell to give evidence. He also reminded the Coroner of the possibility of a verdict of “systems neglect”. The Coroner called Dr Bell and also an expert proposed by the Trust.

Having heard evidence and submissions the Coroner recorded a verdict of systems neglect. On 11th March the NHS Trust settled the estates claim for £10,000.00 which offer was accepted on 13th March. It was a term of settlement that “legal costs in the usual manner, to be assessed if not agreed” would be paid. Those costs were not agreed and costs only proceedings were started. The bill totalled over £15,000.00. 90% of those costs related to an attendance and representation at the inquest. The matter was transferred to the Supreme Court Costs Office from the Milton Keynes County Court at the Defendant’s request. The Defendant argued that there was no jurisdiction to allow the costs of an inquest within the costs of subsequent civil proceedings on the basis that costs incurred in one set of proceedings could not be recovered in another.

The decision

There was no provision for costs to be awarded by a Coroner although costs could be awarded in review proceedings. (Section 13 Coroner’s Act 1988). This was logical in that there were no “parties” to an inquest. However, the want of Coronial power to award costs of itself could not deprive a Court in subsequent proceedings of the power to award a party costs if those costs were “incidental to” the costs of the subsequent proceedings within the meaning of the Supreme Court Act 1981 Section 51 (1).

Here, and in any case where a party in subsequent civil proceedings sought to recover costs incurred in attending and being represented at an earlier inquest, the receiving party was not seeking to recover the “costs of the inquest” but costs of and incidental to the subsequent proceedings. To the extent that costs of an inquest were incidental to subsequent proceedings, then they were recoverable provided that they were reasonably incurred, a reasonable amount and proportionate.

The decision of the Judge in “The Bowbelle” (1997) set out the true rule, namely the costs of an inquest can be of and incidental to the cost of negligence proceedings.

Therefore it was reasonable and proportionate for the receiving party solicitors to attend the inquest to take notes and to question the witnesses. However, the cost of work done to persuade the Coroner to reach a particular verdict was not recoverable. Whilst the verdict reached brought about a speedy settlement such work was not done with the purpose of obtaining information or evidence for the claim. Nor was the cost of adducing the evidence of Dr Bell recoverable. The purpose of calling Dr Bell was not the costs of enlisting information from the inquest but adducing evidence to it.

The costs of obtaining a report from Dr Bell on liability and causation however was recoverable in principle. Dr Bell’s attendance was not recoverable.

The paying party argued that to deny the estate the full cost of representation would be a denial of their right under Articles 2 and 6 of the European Convention. That argument was floored. The estate was able to participate in the investigation of a death. The jeopardy of not recovering all of their costs was not a fetter on their right under the convention.

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