Page 12 - PIC Magazine Winter Issue 14
P. 12

    Inquest Costs
The question whether (and if so to what extent) inquest costs are recoverable in a particular case, is often hard-fought. Importantly, although the recoverability in principle of inquest costs which are
‘of and incidental to’ a civil case is well established, this is not to be equated with a submission that the ‘costs of the inquest’ are recoverable in principle. Michelle Fanneran Barrister at Complete Counsel reports.
             here are many decisions (turning on their own facts) but few binding authorities on this point. In considering recoverability, Courts have for some time considered
whether costs satisfy the thresholds in Re: Gibson’s Settlement Trusts. Broadly, costs have been found to be ‘of and occasioned by’ the civil claim if they amount to efficient and cost-effective evidence gathering for the civil claim – more efficient and cost effective than proofing witnesses individually, for example.
So far so good, but most of these decisions must be placed into the context of the seismic changes in Coronial procedure resulting from the Coroners and Justice Act 2009 which came into effect in July ‘13, the impact of which cannot be understated. Prior to this Act there were very significant variations
in Coronial procedure across the country ranging from full advance disclosure in some inquests to others where Interested Persons knew nothing of the evidence until the live evidence began.
As a result of the Act there is now not only full, advance disclosure in almost every case of all witness evidence, records and other documents but Coroners hold pre-inquest review hearings, circulate agendas, communicate with Interested Persons and often invite submissions.
It is, of course, important to remember that the Coroner’s Court is not adversarial and that the scope is limited to answering four
questions: Who was the deceased? When, where and how (and in some cases in what circumstances) did they come about their death? Not every issue in a civil claim is investigated in an inquest and not every issue in an inquest is relevant to or in issue in the civil claim.
So how does the Court determine recoverability of costs incurred
in attending and participating in the inquest and its lengthy run- up period (including work done
at the Coroner’s request to assist him in discharging his inquisitorial jurisdiction)? Are they of and occasioned by the civil claim?
In Fullick v Commissioner of Police for the Metropolis1 the Court found that a broad-brush approach which failed to consider in sufficient
detail the relevance of individual procedural stages, the categories and subject matter of the documents and the percentage of time attributable to the civil claim (which could vary from document to document and stage to stage) was inappropriate.
First, the Court must identify the outstanding issues (i.e. those not already conceded) necessary to the civil claim in respect of which the Claimant’s case would be advanced by participation in the inquest.
Then the court must look at each step in the inquest process and consider whether all or only some of those steps are relevant to the civil claim. It must be remembered that it is the purpose of attendance at a hearing (as opposed to the
purpose of the hearing itself) that is relevant to operation of the Gibson principles.
The next step is to assess what
it was in that participation which would assist in the civil claim.
The value of that assistance would then be weighed against the costs of pursuing that particular point in the Inquest.
Only once those issues have been identified can the Court consider whether costs were reasonably and proportionately incurred
and reasonable and proportionate in amount.
Slade J recognised that performing the exercise of identifying and analysing the relevance and utility to the civil claim may be onerous but it is necessary. Slade J also found that, ‘It may be necessary and would be prudent to stand back and consider whether the total costs of participation in the inquest are proportionate to its utility and relevance to outstanding issues in the civil claim.’
This approach requires the bill to show inquest costs in sufficient detail and may well affect the time estimate. Moreover, advocates
at the detailed assessment
must clearly be sufficiently knowledgeable about Coronial procedure and the relevance of the costs claimed to the scope of the inquest and the matters in issue.
                 12     IN TOUCH
  1 [2019] EWHC 1941 (QB).
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