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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 claimants inquest costs. They found that the claimants 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 Offices 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.

Lorna Hardman +44 (0)115 976 6228 Partner

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

Lorna Hardman

Lorna Hardman

Partner and Head of Clinical Negligence

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