RECOVERING THE COST OF ATTENDING THE INQUEST: MUST BE BOTH RELEVANT AND PROPORTIONATE (BUT PROPORTIONALITY IS NOT JUST ABOUT MONEY)

The judgment today in Fullick & Ors v The Commissioner of Police for the Metropolis [2019] EWHC 1941 (QB) deals with the, often challenging, question of whether the costs of attending an inquest is recoverable in cases where the claimant has succeeded in a claim following death.

“Far from being a factor against allowing costs of the Inquest as costs of the civil claim, the approach of the Deputy Master is supported by observations of Mr Justice Davis at paragraph 48 of Roach that counsel were entitled to observe that the inquests in those cases in practice seemed to have the effect of causing the civil proceedings thereafter relatively speedy to be compromised.”

“The Deputy Master did not err in taking into account that the issues raised in the civil claim were not only financial but were of importance to the deceased’s family”

KEY POINTS

  1. The costs of attending an inquest are potentially recoverable in a claim for damages following the death.
  2. The court has to be careful to ensure that the costs allowed are those that are reasonably necessary (and proportionate) in the pursuit of the civil claim.
  3. This requires detail in  the bill which would enable the costs judge to assess whether the sums claimed relate to investigation of the civil claim.
  4. Proportionality does not just relate to the sums of money involved.

THE CASE

The claimants brought an action against the defendant following the death of a relative. The inquest into the death lasted seven days. The jury delivered a narrative verdict which indicated that there had been inadequate police policies, procedures and training.

The action settled without service of a letter of claim or particulars of claim, for £17,000.

THE CLAIMANTS’ BILL OF COSTS

The claimants’ bill of costs totalled £122,000.  This included the costs of attending the two pre-inquest hearings.  The Deputy Master allowed the costs of attending the hearings.  The defendant appealed. One of the grounds of appeal was that the costs of attending the inquest should not be recoverable at all.

THE JUDGMENT

Mrs Justice Slade considered the competing arguments.
    1. The issue raised by both grounds of this appeal is whether the Deputy Master erred in awarding all the costs of and related to the Inquest into the death of the subject of a civil claim as costs in that claim. That issue was raised in Ground 1 as a challenge to the amount of the costs award of £88,356.22 for a claim settled for £18,798 without any proceedings being served. It was said that the test of proportionality set out in CPR 44.3(2) was not properly applied. Ground 2 asserts that the Deputy Master erred in treating the Inquest as though it was a trial of the civil claim which led him wrongly to award the costs of all steps in the Inquest as costs in the civil claim.
    2. Mr Bacon QC rightly submitted that the functions of an inquest and of a civil claim are different. He referred to Jervis on the Office and Duties of Coroners thirteenth edition. At paragraph 1-22 the editor explained:

“The functions of an inquest on a dead body at the present day are really to determine certain facts about the deceased, the cause of death, and the circumstances surrounding both death and that cause. Lord Lane CJ once summarised this by saying that: ‘The function of an inquest is to seek out and record as many of the facts concerning the death as public interest requires.'”

Jervis continued at paragraph 1-24 that in R v North Humberside Coroner ex parte Jamieson [1995] 1 QB1 the Court of Appeal held:

“It is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame.”

An inquest is inquisitorial. A civil claim is adversarial.
    1. The Senior Courts Act 1981 provides:

“51(1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in –

(b) the High Court; and

(c) the county court,

shall be in the discretion of the court.”

    1. The decision of the Deputy Master on the award of costs in the civil claim was to be determined by applying CPR 44 which provides:

“44.3(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs –

on the standard basis; or

on the indemnity basis,

but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.

(2) Where the amount of costs is to be assessed on the standard basis, the court will –

(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

(Factors which the court may take into account are set out in rule 44.4.)

44.4(1) The court will have regard to all the circumstances in deciding whether costs were –

(a) if it is assessing costs on the standard basis –

(i) proportionately and reasonably incurred; or

(ii) proportionate and reasonable in amount

(3) The court will also have regard to –

(a) the conduct of all the parties, including in particular –

(ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute;

(b) the amount or value of any money or property involved;

(c) the importance of the matter to all the parties;”

    1. Mr Bacon QC rightly accepted, as had the Defendant below, that costs of attending the Inquest are recoverable. The civil claim concerned the cause of death of the person who was the subject of the Inquest.
    2. Mr Bacon QC contended that authorities decided before the introduction of the post Jackson provisions in the CPR regarding costs were now not binding. I disagree. In my judgment there is no reason to disregard previous authorities where and insofar as they deal with considerations in the current rules of court which are to be applied when assessing costs.
    3. In Roach Mr Justice Davis (as he then was) held at paragraph 48

“It follows that, in agreement with the Cost Judges in each of these cases, I consider that the approach taken by Clarke J in the Bowbelle was correct. Costs of attendance at an inquest are not incapable of being recoverable as costs incidental to subsequent civil proceedings. Nor does this give rise to any unprincipled approach – because the relevant principles, as conveniently set out in Gibson, are available to be applied by Costs Judges in a way appropriate to the circumstances of each case. It may also be remembered that Clarke J in fact disallowed some of the costs relating to the inquest claimed as costs incidental to the civil proceedings (the overall approach illustrating just how important the factor of relevance is).”

In Gibson Sir Robert Megarry VC at page 186 identified three strands of reasoning to be applied in deciding whether costs incurred before the relevant proceedings in which costs are claimed are recoverable. These are whether those prior steps were of use and service in the proceedings, were of relevance to an issue and to attributability of the defendant’s conduct to the claim.
    1. These authorities emphasise the need to identify the issues raised in the civil claim and the relevance of matters in other proceedings, the inquest in Roach, or procedures, in Gibson, to determine as a first question, whether any of those costs can in principle be claimed in the civil proceedings. Once the threshold of relevance has been passed, the costs judge will decide whether the costs claimed in respect of, in this case, the Inquest, were proportionate to the matters in issue in the civil proceedings. As for the amount of those costs, those which are disproportionate may be disallowed or reduced even if they were reasonably and necessarily incurred.
    2. It is trite but important to emphasise that each application for costs in a civil claim and related to an inquest must be determined on its own facts. This is illustrated in two authorities relied upon by Mr Bacon QC. In allowing the claimant’s appeal in Roach from the decision of the Master to allow only half the costs of the inquest, in addition to the observation at paragraph 60, Davis J held at paragraph 58:

“It is further essential, applying the principles in In re Gibson’s Settlement Trusts [1981] Ch 179, to have regard to considerations of relevance where the costs of attendance at an inquest are claimed, in whole or in part, as costs incidental to the subsequent civil proceedings.”

In support of his contention that the Deputy Master erred in awarding the costs of the pre-inquest hearings, counsel relied upon the judgment of Mr Justice Clarke (as he then was) in Bowbelle at page 2019 that:

“I do not think that by the spring of 1990 all the costs of attending a full inquest could fairly be regarded as costs of or incidental to the contemplated proceedings against the shipowners. By that time negligence had been conceded.”

However this observation, as that in Roach, does no more than emphasise the need to consider the facts of each case in order to decide whether the costs of attendance at the whole or part of an inquest are proportionate to the matters in issue in the civil proceedings. In Bowbelle negligence had been conceded before the inquest. The coroner did not proceed with an inquiry into the causes of the collision because of an intention to proceed with a criminal prosecution.
    1. Amongst other matters, paragraph A of Appeal Ground 1 relies upon the fact that the claim in this case settled before the issue of a formal letter of claim and prior to the service of proceedings. That this is the case does not necessarily lead to a conclusion that costs incurred in and related to an inquest in which issues relevant to a contemplated civil claim are not recoverable was made clear by Mr Justice Davis in Roach. At paragraph 48 he commented:

“Mr Westgate in fact was, I think entitled to observe – as he did – that it was open in the instant case to the Home Office likewise to seek to avoid or minimise any potential liability for such costs here by admitting liability prior to the inquest. He and Mr Post were also entitled to observe that the inquests here in practice seem to have had the effect of causing the civil proceedings thereafter relatively speedily (and thereby in a way saving of some costs) to be compromised.”

    1. The provisions of CPR 44.4(1)(a) make it clear that costs proportionately and reasonably incurred must also be proportionate and reasonable in amount.
    2. As to the amount of costs to be awarded in respect of attendance at the Inquest, Mr Bacon QC submitted that the judgment of Mr Justice Leggatt in Kazakhstan Kagazy established that:

“The touchstone is not the amount of costs which it was in a party’s best interests to incur but the lowest amount which it could reasonably have been expected to spend in order to have its case conducted and presented proficiently, having regard to all the relevant circumstances. Expenditure over and above this level should be for a party’s own account and not recoverable from the other party.”

However, Mr Justice Leggatt made these observations on the facts and circumstances of the particular case before him. The passage relied upon by Mr Bacon QC was preceded by the following:

“13. In a case such as this where very large amounts of money are at stake, it may be entirely reasonable from the point of view of a party incurring costs to spare no expense that might possibly help to influence the result of the proceedings. It does not follow, however, that such expense should be regarded as reasonably or proportionately incurred or reasonable and proportionate in amount when it comes to determining what costs are recoverable from the other party. What is reasonable and proportionate in that context must be judged objectively.”

Unlike Kazakhstan Kagazy the civil claim in this case was about more than money. It challenged police practices and procedures and asserted breaches of Article 2 of the European Convention on Human Rights. Counsel relied upon Coroners (Inquest) Rules 2013 Rule 13 to challenge the need for the level of costs for attending the Inquest hearing.
    1. Each case must be judged on its own facts as to whether the amount claimed as costs for an allowable item is proportionate and reasonable. This court can only interfere with the judgment of the Deputy Master if he erred in law or reached a conclusion which was not open to him on the material before him, in other words, was perverse.
    2. Whilst the ‘battleground’ reference may have been unfortunate, the Deputy Master did not err in his conclusion that the costs attendance at the Inquest hearing were reasonably and proportionately incurred. Mr Robins for the Defendant had not challenged that costs of attendance at the Inquest by legal representatives of the Claimants was allowable. The challenge was to the amount of those costs. The cause of death and recommendations for changes in police procedure were relevant to the civil claim. The claim was for damages for breaches of Article 2 of the European Convention on Human Rights in relation to the death of Ms Jones at a police station. Evidence on the cause of death and actions and procedures of the police given in the Inquest and the verdict reached are relevant to those issues. Consideration should be given to whether all or only some of the steps in the Inquest proceedings are relevant to the civil claim. If they are, whether the costs incurred in participation by the Claimant in each of those steps is proportionate and reasonable. If some of those steps are agreed, such as the giving of certain evidence, it is unlikely to be proportionate or reasonable for a receiving party to attend a pre-hearing review to deal with agreed matters.
    3. It was perhaps infelicitous for the Deputy Master to refer to the ‘inquest proceedings as the battleground for fighting out between the parties the issues that needed to be resolved’ in the civil proceedings. Whilst the term ‘battleground’ may be said to fail to recognise the difference between an inquest and an adversarial civil trial to determine liability, the import of the observation was open to the Deputy Master in relation to this Inquest. The Defendant had not conceded the cause of death or defects in their procedures. The Inquest jury delivered a verdict on the cause of death attributing it in part to defaults on the part of the Defendant: inadequate policies, procedures and training. It was not suggested by the Defendant that these were not issues raised in the contemplated civil proceedings.
    4. The Defendant challenged the award of costs for attending the first pre-inquest review hearing. It appears from the transcript of the proceedings before the Deputy Master that he was informed that this was the first opportunity for the Claimants to ‘engage’ with issues of concern (AB 172 L21,22). These included expert evidence on causation and the position the deceased had been left in at the police station when she became ill. This account of the pre-inquest hearing was not challenged.
    5. In my judgment it cannot be said that the Deputy Master erred in holding that ‘it would be [a] remiss in pursuing this claim not to be there. (AB 173 L4,5) The Deputy Master did not err in deciding that costs of such attendance were payable and that they were proportionately and reasonable incurred.
    6. The Defendant also challenged the order to pay costs of the second pre-inquest review hearing. Master Keens referred to what the Claimant’s representative did at the one hour hearing as ‘that is getting questions to the coroner, that they – or questions that they wanted to put to Dr Paul.’ (AB 174 L13-15) That account of the content of the second pre-inquest review hearing was not challenged. In my judgment it cannot be said that the Deputy Master erred in allowing the Claimant’s claim for the costs of the second pre-inquest review hearing.
    7. The additional more substantial items listed in the Amended Grounds of Appeal as wrongly held to be recoverable as costs of the civil claim included the following from the Bill of Costs: 12, 13, 43, 54, 68 and 69. The global point of challenge to the Deputy Master allowing costs for all these items was that they were incurred preparing for the Inquest and were not reasonably or proportionately incurred in pursuing the civil claim. The challenges to items 14, 25 and 28 of the Bill of Costs to the level of representation at the Inquest hearing had been considered by the Deputy Master. The reductions he made and conclusions reached were within the parameters of his discretion on assessment.
    8. The contentions of the Defendant in relation to each of these items are set out in the Schedule to the Amended Grounds of Appeal. Whilst it was rightly observed by Mr Mallalieu that the Deputy Master reduced the amounts claimed in respect of the challenged items, the question of whether the costs of these items should have been allowed at all is different from the issue of whether the amounts claimed in respect of them was proportionate and reasonable.
    9. In respect of items 12 and 13, time spent in conference with counsel preparing for the Inquest, the Deputy Master observed: ‘I am satisfied with 12 and 13 need for a pre-inquest conference.’ (AB 176 L23) The challenge in respect of item 43 shown in the schedule is that the conclusion that all work reasonably undertaken for the Inquest was reasonably undertaken for the civil claim was flawed. Objections made by the Defendant before the Deputy Master were of excessive time spent on these items and that some of it was spent on the Inquest and related judicial review proceedings. Although the Defendant lists a challenge to issue 53 on the Schedule in the Amended Notice of Appeal, it appears from the transcript of proceedings before the Deputy Master that Mr Robins did not object to that item as there were costs of attendance on the Defendant. (AB 194 L15,16) The Deputy Master allowed item 54 on the basis that correspondence with the London Ambulance Service was relevant to the claim. (AB 195 L6,7)
    10. The largest sums of costs challenged on appeal were those for items 68 and 69, 72 hours of Grade A fee earner’s time and 25 hours of Grade D time in respect of civil claim documents work. The challenge was both to the number of hours found to be attributed to the civil claim and also the amounts allowed in respect of those hours.
    11. In deciding the number and grade of fee earner’s hours attributable to the civil claim the Deputy Master observed in Cost Judgment 1:

“The defendant’s challenge, as premised in the points of dispute, was really focused on matters of principle really where I have found against the defendants in that I have held that in the large the costs involved in the inquest should be regarded as costs of the claim, so – as against that finding, the defendant’s contending per the points of dispute that only a third really of the documents time at about 30 hours should be allowed to the Grade A is unrealistic and falls away. The claimants made a proposal of reduction, in respect of Grade A fee earner time to 80 hours; I think the reduction should be greater but not very much more so. I propose to reduce the 91.9 hours claimed for the Grade A fee earner by 19.9 hours to 72 hours and having made that disallowance there are six hours of that time that I think should be transferred to the Grade D fee earner in relation to preparation of bundles.”

    1. The passages referred to in the transcript of proceedings before the Deputy Master support his decision to award costs to the receiving party in respect of all the challenged items in the Bill of Costs save for items 68 and 69. In my judgment the Deputy Master erred in law in dealing with items 68 and 69 on the Bill of Costs in that he failed to decide which work claimed was relevant to pursuing the civil claim. The Deputy Master failed to consider the categories and subject matter of the documents in respect of which time spent on the civil claim was spent. This broad brush approach fails to distinguish between costs incurred in different steps in the Inquest. The percentage of costs incurred in each which were attributable to the civil claim may well have differed. The Deputy Master did not assess the time relevant to the civil claim spent on considering documents. Items 68 and 69 do not set out the categories and numbers of documents which were relevant to the civil claim. As this was not done, the Deputy Master was not in a position to assess whether those costs were proportionately or reasonably incurred or were proportionate and reasonable in amount. It is only once this has been decided that the Deputy Master would be in a position to assess whether those costs were proportionately and reasonably claimed and proportionate and reasonable in amount. This should be decided before considering the overall amount of the costs award having regard to proportionality
    2. Appeal Ground 2 succeeds in relation only to the award of costs for items 68 and 69. The sum ordered to be paid by the Defendant to the Claimant in respect of these items is set aside. These items are to be reassessed.
    3. As for Ground 1 of the Appeal, CPR 44.4 provides that when a court is assessing costs on the standard basis it will have regard to all the circumstances in deciding whether costs are proportionately and reasonably incurred or are proportionate and reasonable in amount. One of the matters to which the court will have regard apart from the amount at issue is the importance of the matter to all the parties.
    4. In this case the amount of damages at issue was relatively small. However it was acknowledged by the Defendant that the claim was not just about money. This case is very different from that considered by Mr Justice Leggatt in Kazakhstan Kagazy in which the claim was for a large sum of money.
    5. The Deputy Master did not err in taking into account that the issues raised in the civil claim were not only financial but were of importance to the deceased’s family. The Inquest proceedings held the police to account in some measure for the death of Ms Jones. The settlement of the claim gave rise to agreement to revise policies, protocols and training which should avoid for the future the situation which arose in this case. These issues were of wider public interest than that of the Claimants.
    6. In considering proportionality, the Deputy Master took into account that once the Inquest verdict had been delivered with a finding of at least partial responsibility on the part of the Defendant, the civil claim could be resolved shortly afterwards. Far from being a factor against allowing costs of the Inquest as costs of the civil claim, the approach of the Deputy Master is supported by observations of Mr Justice Davis at paragraph 48 of Roachthat counsel were entitled to observe that the inquests in those cases in practice seemed to have the effect of causing the civil proceedings thereafter relatively speedy to be compromised.
    7. In Costs Judgment 2 the Deputy Master referred to his reduction of the Claimant’s claimed costs from something over £122,000 in the Bill of Costs to somewhere around £88,500 as what he considered to be reasonable and proportionate ‘costs recoverable inter partes.’ He stated that ‘Having regard to the factors to which I have alluded, I do not consider it is appropriate to make any further reduction on the grounds of disproportionality. I do not find those costs as assessed by me today to be disproportionate to the issues.’
    8. The reference by the Deputy Master to consideration of whether costs were proportionate to the issues is, in my view, of central importance to the assessment he was to make. The costs incurred by the Claimants in connection with the Inquest must be relevant to issues in the civil claim to be recoverable as costs in that claim. That requires identification of outstanding issues which are necessary to the civil claim in respect of which the Claimants’ case would be advanced by participation in the Inquest. The assessment also required the identification of what it was in that participation which would assist with the civil claim. The value of that assistance would then be weighed against the cost of pursuing that particular point in the Inquest.
    9. Performing the exercise of identifying and evaluating the relevance and utility to the civil claim of participating in the Inquest may be onerous but in my judgment it is necessary. It may be necessary and would be prudent to stand back to consider whether the total costs of participation in the Inquest are proportionate to its utility and relevance to outstanding issues in the civil claim.
    10. The decision in each case will depend on its own facts. The approach to the assessment of costs set out in this judgment is applicable to the circumstance of this particular case. It is derived from CPR 44 and from the earlier judgments referred to which are relevant to the issues in this appeal.
    11. This Inquest was concerned with the cause of death and police procedures and actions which were said to have been contributory factors. These matters were relevant to the civil claim which had been notified but not set out in Particulars of Claim. It had been rightly conceded that the cost of attendance at the Inquest hearing was relevant to the civil claim although the proportionality of the level and cost of participation was questioned.
    12. The only items on the Bill of Costs in respect of which the challenge in Appeal Ground 2 has been held to be well founded are items 68 and 69. These are to be reassessed. In that reassessment the approach set out in the preceding paragraph and other relevant passages of this judgment are to be applied to ascertain how much of the work in respect of which costs are claimed for items 68 and 69 are relevant to the civil claim and whether they are proportionate in terms of their utility and amount. Once that figure has been arrived at, the proportionality of the total reasonable costs relevant to the civil claim can be assessed applying the principles which the Deputy Master rightly relied upon when conducting that exercise albeit that it will now be carried out using what may be a different figure for items 68 and 69.
    13. Ground 2 is allowed to the extent that the reasonableness and proportionality of the costs incurred in relation to the Inquest which are to be awarded to the Claimants in the civil claim is to be re-examined in light of the re-assessment of items 68 and 69 in the Bill of Costs.
    14. I am grateful to Costs Judge, Master Rowley who has sat with me in this appeal as Assessor for his experience in assessing costs. However this judgment is mine alone.
Disposal
  1. Appeal Ground 2 succeeds only in relation to the award of costs for items 68 and 69 which are set aside.
  2. Appeal Ground 1 succeeds to the extent that the total costs to be awarded are to be re-assessed in light of the re-assessment of items 68 and 69.
  3. The assessment of costs in accordance with this judgment is to be carried out by a Costs Judge other than Master Rowley who will also deal with the costs of the appeal.”