Inquest costs revisited

Seamus Kelly – Advocate/Newcastle Team Leader

In this article Seamus Kelly, Advocate/Newcastle Team Leader at PIC addresses one of our most common queries, inquest costs.

 

In the world of costs everything is divisible by 6 – the magic unit, the core (or some might say bane of) a solicitor’s life. We don’t say a conference lasts 2 hours, we say it was 20 units long. It’s a unique way of thinking and it becomes all encompassing … Before long, a football match is not 90 minutes, rather 15 units (plus half time). A film becomes 20 units rather than 2 hours. We can divide time by 6, but can we really slice and pack time neatly when dealing with inquests?

Costs law constantly encourages us to allocate our time, be it in budget phases, or the new electronic bill. We draw distinctions between different actions and must split up longer pieces of work into their composite parts, allocating them to the most appropriate phases.

So how do we deal with inquest costs? Is an inquest divisible from a civil claim? Can an inquest be cut apart, so that the elements which are relevant to a civil claim can be neatly extracted? Can we divide time? And if so, what are the borders?

There are numerous relevant cases in this area. PIC have previously provided a handy recap of these, which can be found here.

For this article we are revisiting the topic by considering the following 4 key cases which should help you navigate this often-contested area:

  • Re Gibson’s Settlement Trusts [1981] Ch 179

 

Are inquest costs recoverable?

The short answer to this is, in principle, yes. As with anything in law, however the full answer is much less straightforward.

The Supreme Court case of Gibson established that pre-action costs which were “incidental” to the subsequent civil proceedings could be recovered on the basis that they fell within the Court’s discretion. A three-prong test was established and became known as the Gibson Test. This meant that for time to be recoverable it had to be shown that such time had to:

  • prove of use and service in the action
  • bear relevance to an issue
  • be attributable to the [paying parties’] conduct.

These principles are a common theme throughout inquest costs litigation and continue to this day. See for example the 2018 case of Douglas v Ministry of Justice & Care UK [2018] EWHC B2 (Costs).

Roach

In Roach the Court considered Section 51 of the Supreme Court Act 1981, and whether inquest costs could be recoverable in subsequent proceedings. The case considers some key points, and ultimately concluded that;

Costs of attendance at an inquest are not incapable of being recoverable as costs incidental to subsequent civil proceedings.

The Court was invited to provide guidance but declined stating (at paragraph 62 of the Judgement):

“It seems to me that the discretionary regime available to Costs Judges in this context, and the application of section 51 and Rule 44, will not be advantaged by further guidelines (so called): each case should properly be decided by reference to its own circumstances. I am fortified in this view by the suggestion, as to which I express no opinion, that what is decided in these cases (which relate solely to inquests preceding a subsequent resolution of civil proceedings) may also be relevant in other contexts: for example, attendance prior to civil proceedings at a criminal trial involving death by dangerous driving or a criminal trial involving Health and Safety issues. Better, I think, to leave it to Costs Judges to decide each case on its own facts by reference to section 51 and the subordinate statutory rules and having regard to the principles indicated in Gibson”.

So following Roach, inquest costs were indeed recoverable, but aside from Gibson, there was little further guidance.

Subsequent decisions help provide a further picture of this issue.

“Evidence gathering” or “assisting the coroner”?

In Wilton v The Youth Justice Board [2010] EWHC 90188 (Costs), the inquest lasted some 30 days, the costs of which were claimed within thin bill for the civil claim. The Court considered which days of an inquest could be recoverable as costs in the subsequent civil claim. In order to determine which inquest work could be reasonably recovered the Court drew a distinction between work which could be categorised as “evidence gathering” (which would be recoverable) and work which would fall under the ambit of “assisting the coroner” (which would not be recoverable).

The Defendant contended that day 23 to day 30 were not recoverable on the basis that they;

“do not relate to gathering evidence and specifically relate to the legal arguments, submissions regarding verdicts, questions to go to the jury, ruling of the Coroner, summing-up and the verdict”.

The Court decided that it was reasonable for legal representation to remain throughout this period. It was held that it was not reasonable that a,

guillotine falls and that an interested party’s legal team must then pack its bags and leave Court for good.”

The Court highlighted the importance of a legal team attending to the end:

“In my opinion, ensuring that the jury reaches a conclusion that was properly obtained, is more likely to be of assistance to a subsequent civil claim, than a verdict that is quashed on judicial review”. (Paragraph 14)

The Court did agree that there could be overlapping costs that concern both the civil claim and “assisting the coroner”.

In such instances, it was accepted that the Court would need to

“look at each divisible item and that where that item has been increased by the addition of costs relating to “assisting the Coroner”, that component will be separated out and disallowed” (paragraph 16).

This decision showed that inquest Costs are more nuanced than some would contend. That being said, Master Campbell’s approach was not followed in Lynch.

Splitting time

Lynch is often referred to as it neatly sets out various categories of time. Whilst it can be a useful exercise to consider these categories, it must be remembered that Master Rowley was very clear that his findings were case specific. It would be fool hardy to simply consider that work in each of these categories will always be or not be recoverable.

In Lynch, 7 categories of time were identified, which are listed below:

Category 1 -Time spent that was irrelevant to the civil claim

These costs were not deemed recoverable.

This effectively includes time that was useful for negotiating a settlement but did not form part of the actual civil claim.

Master Rowley drew this distinction at paragraph 82 where he commented that

“the concept of use and benefit, in my judgment, must be viewed in respect of the proceedings themselves and not any negotiations outside those proceedings.”

He continued,

As far as the proceedings are concerned, the verdict and all the matters that go immediately before it, are irrelevant. I do not accept the Claimants’ argument that, in the absence of the full participation of the Claimants’ team, including the securing of a helpful verdict, there would inevitably have been a fully contested civil trial as Ms Ricca suggests. But, if the Defendants had decided to defend this case, the verdict reached would not have prevented the Defendants from going to a fully contested trial”.

Master Rowley did not adopt the Wilton approach (outlined above) in relation to assisting the coroner reaching a verdict, but rather stated that he preferred the approach of Master Gordon-Saker in Jacqueline King v Milton Keynes General NHS Trust [2004] EWHC 9007 (SCCO).

In King, Master Gordon-Saker found (at paragraph 33) of the Judgement that:

“the cost of work done to persuade the Coroner to reach a particular verdict is not, in my view recoverable. While the verdict reached may have brought a speedy settlement, such work was not done with the purpose of obtaining information or evidence for the proposed claim”.

Category 2- where the witness’s statement is read out

These costs were not deemed recoverable.

The key comment here, which is self-explanatory can be found at paragraph 77:

“There is no greater benefit to be gained by listening to a witness statement being read out at the inquest that by reading it in the solicitor’s office”.

The following categories (3 – 7) were deemed to be recoverable in principle

Category 3 – where the Claimants’ own witnesses were giving evidence

Category 4 – where witnesses are called but the Claimants’ team asks no questions of them

Category 5 – witness evidence which was said by the Coroner to be given by witnesses who were not directly involved

Category 6 -‘Systems’ witnesses

When considering the costs, Master Rowley placed a focus on proportionality throughout. In particular he considered which levels of fee earner should have been present in each situation, from a view of proportionality.

Category 7- witnesses who had previously given evidence to the IPCC I disciplinary hearing

At paragraph 95, Master Rowley said that,

“having their statements and having seen them give evidence already, I consider that there was only a need to take a note of what was said (unlike categories 3 to 6). Therefore, in relation to category 7, I consider the attendance of the trainee solicitor is all that was appropriate for the civil claim.”

Conclusion

The above cases show that inquest Costs are far from straightforward. Whilst the costs are recoverable in principle, the tests in Gibson must be kept in mind, and proportionality applied. This position has been echoed in more recent cases, such as Powell & Ors V The Chief Constable of West Midlands Police [2018] EWCH B12 (Costs)). Inquests can become expensive and often necessary exercises (for a number of reasons). That being said, practitioners must always remember that there is no automatic entitlement to recover all the costs. It is therefore advisable to be proactive when dealing with inquests. Think about the cost implications at an early stage (which fee earner attends which day for example), as they will undoubtedly be placed under the microscope at assessment. Also put the other side on notice that you intend to recover your inquest costs. Factors such as conduct, and whether there has been an admission or denial of liability of liability must all be considered. Each matter must be considered on a case by case basis.

PIC are able to help navigate these uncertain waters.  Please contact Seamus direct with all your inquest queries.

Seamus Kelly – Advocate/Newcastle Team Leader – Partners in Costs

13.02.19

VIEW OUR SERVICES+