CLAIMANTS CAN RECOVER THE COSTS OF ATTENDING A PRE-INQUEST REVIEW: THE DEFENDANT’S RHETORIC WAS MISPLACED: THE CLAIMANT’S COSTS WERE NOT “EYE WATERING” AT ALL

In Briley & Ors v Leicester Partnership NHS Trust & Ors [2023] EWHC 1470 (SCCO) Costs Judge James found that the costs of attending a pre-inquest review were held to be recoverable inter partes.

“I would add that whilst the use of hyperbole is a viable tool in rhetoric, the Defendants’ reference to ‘eye-watering’ costs at Point 6 is misplaced. Amanda died after months of inadequate care, culminating in her taking steps that ended her life (I do not say taking her own life because it is far from clear that she intended it to go as far as that) at the young age of twenty.

In the context of the Claimants’ wish to get to the bottom of why such a vulnerable young person who had been making multiple ‘cries for help’ over the preceding months and years, and who seemed, based upon the background facts, to have had a reasonably clear pattern of harming herself at the first opportunity if her supervision levels should fall, had been put on such a low level of supervision hours before she died, I do not regard the costs as ‘eye-watering’ at all.”

THE CASE

A young woman died whilst in the care of the defendants.  The claimants brought an action for negligence causing that death.   The defendant did not admit liability initially and the claimant’s legal representatives attended the pre-inquest review.  Liability was admitted shortly before the inquest itself and the matter settled for £65,000.

THE COSTS IN ISSUE

Several points of costs were in issue.   One of them was the defendant’s objection to paying the costs of counsel attending the pre-inquest review.

THE DEFENDANT’S ARGUMENT

The judge set out the defendant’s arguments.

Point 6

1. 1. As to point 6, the legal costs incurred during the pre-Inquest review hearings, these were totalled by the Defendants at £14,736.42; in fact they come to £14,770.67 as to £7,587.50 Counsel’s fees, £6,349.00 Solicitors’ Costs and £834.17 travelling expenses (Counsel and Solicitors). As the matter settled before the Inquest ‘proper’ took place these were not costs of that Inquest, nor of the ancillary Advices, Conferences or documents times during the Inquest proceedings.

1. 1. Per the Defendants, the legal costs in this matter spiralled out of all context with the value of the claim, before the Defendants even had an opportunity to address the civil claim facing them; the Claimants’ Solicitors were said to have provided a ‘platinum legal service’ to the Claimants, including what is described as a ‘weighty legal presence’ throughout the Inquest process, whilst incurring an ‘eye-watering’ legal spend without regard to consideration of proportionality, adding that, no doubt if the Inquest costs had been incurred the legal costs would have been significantly higher still.

1. 1. The Defendants refer to the dicta of Judge Alton in Jefferson v National Freight carriers Ltd [2001] 2 Costs LR 313, Neutral Citation Number: [2001] EWCA Civ 2082; in fact they mean Lord Woolf who cited with approval at paragraph 40 of Jefferson that learned Judge’s decision in an unnamed matter in the Birmingham County Court on 22 June 2000, when he stated,

“In modern litigation, with the emphasis on proportionality, it is necessary for parties to make an assessment at the outset of the likely value of the claim and its importance and complexity, and then to plan in advance the necessary work, the appropriate level of person to carry out the work, the overall time which would be necessary and appropriate to spend on the various stages in bringing the action to trial, and the likely overall cost. While it was not unusual for costs to exceed the amount in issue, it was, in the context of modest litigation such as the present case, one reason for seeking to curb the amount of work done, and the cost by reference to the need for proportionality.”

1. 1. Per the Defendants, only costs ‘of and incidental to’ the civil claim are recoverable, relying upon Roach v The Home Office [2009] EWCH 312 QB, and dispute all times or items associated with matters of procedure, including attending at pre-Inquest hearings, assisting the Coroner, listening to Witness Statements being read aloud, and the verdict. Pausing here, that appears to be a ‘cut and pasted’ Point of Dispute as it is clear that the matter was settled shortly before the Inquest ever took place and that the costs of that Inquest do not appear in this Bill.

1. 1. The Defendants challenge all costs associated with client care and travel expenses, referencing the SCCO Judgment of Master Rowley (as he then was) in Amanda Helen Lynch (Representative of the Estate of Colette Lynch) and Others v (1) Chief Constable of Warwickshire Police (2) Warwickshire County Council and (3) Warwickshire NHS Trust [14 November 2014]. They also refer to Humberstone R (on the Application of) v Legal Services Commission [2010] EWCA Civ 1479, Jacqueline King (Administratrix of the Estate of Robert Gadd, Deceased) v Milton Keynes General NHS Trust (2004) a decision of the now Senior Costs Judge, Master Gordon-Saker, in the SCCO from 13 May 2004. They also refer to (1) Stewart (2) Howard v Medway NHS Trust being a decision of Master O’Hare in the SCCO on 6 April 2004.

1. 1. Mr Smith developed submissions on the case law during the hearing before me and also referred to Fullick & Ors v The Commissioner of Police for the Metropolis [2019] EWHC 1941 (QB); that is a case in which the Court approved the inclusion of pre-Inquest costs in the Claimants’ Bill whereas in Lynch the Court did not. As Mr Smith pointed out, each case must turn on its own facts, with Proportionality being of central importance, along with the relevance (if any) to the civil claim. The question he said I must ask myself is, how did the Claimants’ participation in the pre-Inquest reviews help their claims against the Defendants? Is this a case (as per Lynch) whereby the benefit to the Claimants was insufficient to justify the costs now being claimed? I was referred to various documents and in particular to an ‘unqualified’ admission, and asked how would further participation in the pre-Inquest reviews, assist on quantum or otherwise?

1. 1. Finally, the Defendants referred to In re Gibson’s Settlement Trusts [1981] Ch 179, 1 All ER 233. Inquest costs, in order to be recoverable, must be:

(a) Of use and service in the claim

(b) Relevant to the matters in issue in the claim and

(c) Attributable to the Defendants’ conduct (all three tests must be passed).

1. 1. Per the Defendants, the Court should bear the following in mind:

i. In May 2018, extensive bundles of medical records were received from the First Defendant (Leicestershire Partnership NHS Trust) including safeguarding records, lengthy Witness Statements, reports and detailed case notes from the First Defendant and from Leicester County Council, with disclosure also coming from the Third Defendant (East Leicestershire and Rutland Clinical Commissioning Group).

ii. Coroner’s (Inquests) Rules 2013, Rule 13 – the Rules implemented a disclosure regime that sees full disclosure to the interested parties, which automatically includes Amanda’s family, occurring ‘at the earliest opportunity, and certainly before the Inquest commences’.

iii. A Letter of Apology was sent from the Chief Executive of LPT [sic – presume this is the First Defendant] to the Claimants’ Solicitors, dated 20 October 2017

Not on Defendants’ chronology 11 December 2017 – first pre-Inquest review hearing

Not on Defendants’ chronology 30 May 2018 – second pre-Inquest review hearing

iv. The First and Second Defendants made full liability admissions prior to the Inquest (hence why there is no attempt to recover the costs of attending the Inquest in the Bill of Costs. The Third Defendant ‘had limited involvement in the proceedings in any event.’

v. The Defendants engaged in negotiations on 25 July 2018 and presented the Claimants with a Part 36 offer in the sum of £32,500 plus costs.

vi. A Part 36 offer was made on 26 October 2018 in the sum of £65,000, covering all three Defendants. The Claimants accepted the offer on 16 November 2018.

1. 1. At the hearing before me, Mr Smith recognised that it would be wrong to disallow all of the time at the Inquest, but as the case settled prior to the Inquest, that was not the issue. General ‘housekeeping’ at the pre-Inquest reviews would not be recoverable and I was encouraged to undertake a proportionate investigation into what should be recoverable in this case.

1. 1. Mr Smith referred to Kazakhstan Kagazy plc v Zhunus [2015] EWHC 404 (Comm) which  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.”

Pausing here, Mr Justice Leggatt of course made those observations on the facts and circumstances of the particular (very high value) case before him.

1. 1. Mr Smith gave a long list of facts in Amanda’s case, in addition to those already enumerated above, he referred to an incident in September 2016 when she banged her head and suffered a concussion, as well as to yet another ligature attempt around this time, where she went unconscious. This was clearly a serious incident yet, at the time of her death, no Serious Incident Report had been made. He referred to the visual ‘map’ timetable by which, as she had discussed, Amanda was expecting, upon returning from Christmas and feeling ‘deflated’ to be on level 1B supervision, i.e. in constant line of sight.

1. 1. Instead, she was put on hourly supervision, and between visits at 02:00 and 03:00 on Boxing Day 2016, ligatured herself so as eventually to lead to her death from a non-survivable hypoxic brain injury two days later. It was clear that she was a suicide risk and that stringent measures were needed to protect her and, per Mr Smith, the First Defendant had already apologised, by the time she died.

1. 1. Mr Smith referred to ‘triggers’ identified in an initial Report, including changes to routine (such as a home visit) and over-stimulation (for someone with autism on an acute mental health ward). A multi-disciplinary meeting had said, as early as January 2017, that the Bradgate Unit was not a suitable setting. The Serious Incident Investigation Report was received by the Claimants’ Solicitors in May 2017 and in June 2017 a Final Report to the Coroner concluded (at paragraph 240) that ‘neglect was likely to have occurred.’ A letter of apology dated 20 October 2017 referred to an unacceptable failure to place Amanda on an appropriate level of supervision following her Christmas leave.

1. 1. Hence, per Mr Smith, it was clear that Amanda should never have been on the Bradgate Unit, and that she should have had more supervision; however, given that the Claimants’ Solicitors knew this prior to the first pre-Inquest review in December 2017, he asked the question, of what use and service was the pre-Inquest review, in terms of the civil claim? He further referred to the Council safeguarding team making findings of neglect; this was after the first but before the second pre-Inquest review. The Defendants accepted that they had failed to meet Amanda’s needs and that the impact thereof contributed to Amanda’s stress levels and, ultimately, to her death.

1. 1. He assumed that the family had attended the Inquest (which is not in the Bill as the civil claim settled shortly before it took place) and stressed that it was entirely understandable and right that they would do so, but the fact that this was hugely important to the family, did not make it ‘of use and service’ in the civil claim. Amanda’s condition and the risk it posed, were well known; the conditions on the Bradgate Unit must have been ‘torture’ for her and she was not watched properly (or as she had been promised she would be watched) but all of this was known. What more, of use and service to the proceedings, could be gained by in-person attendance? The sheer importance of the Inquest to the family, does not mean that it was of use and service as the Gibson test requires.

1. 1. In conclusion, the Defendants assert that they resist all costs in their table (the table incorrectly totalled at £14,736.42 but in fact totalling £14,770.67) and state that neither a Solicitor/fee earner nor a Barrister should have attended at the pre-Inquest review hearings (or, to put words into their mouths, if the Claimants wished to have representation at these hearings it is a matter for them/the Legal Aid Agency, and not the Defendants, to pay for).

JUDGMENT ON THE COSTS OF ATTENDING THE PRE-INQUEST REVIEW

The judge did not accept the defendant’s argument. On the facts of this case it was wholly reasonable for the claimant to have representation at the pre-inquest review.  It was reasonable and proportionate for both counsel and solicitor to attend.

Claimants’ case on the Preliminary Issues –taken from the Points of Reply as elaborated upon by the Solicitor and Costs Lawyer at the hearing before me.

Point 6

1. 1. At the hearing before me, the judgment in Fullick was referred to by both sides; Mr Buckley, Costs Lawyer for the Claimants in this case also appeared for the Claimants in Fullick and the case was a recent decision in the High Court (and therefore potentially binding rather than merely persuasive) dealing with the question of whether the costs of attending an Inquest are recoverable in cases where the claimant has succeeded in a claim following death.

1. 1. Slade J in Fullick reinforces the fact that the costs of attending an Inquest are potentially recoverable in a claim for damages following the death, but that 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, which must be decided upon consideration of the Bill of Costs. Here, I have what would at the time have been a relatively early electronic Bill, which has sufficient detail to enable me to assess whether the sums claimed do indeed relate to investigation of the civil claim, especially as assisted by the learned submissions of the advocates who attended before me.

1. 1. Fullick also reminds the reader that Proportionality does not just relate to the sums of money involved; in cases such as this one, finding out what caused such a death is a very significant factor as well. Due to her various health issues, Amanda did not have and may never have had any prospect of a career, let alone a high-earning one. Nor was she in a relationship (not counting ‘Declan’ who may or may not have existed) and nor had she had any children. Those facts close off a great many potential heads of loss, but that does not mean that Amanda’s life was not worth anything nor that her life was not worth more than £65,000.

1. 1. Obviously, it was, but on the facts in this case I would say that, as important to the Claimants as the money damages, was finding out exactly what happened to Amanda and why so as (hopefully) to avoid the same sad fate befalling any other vulnerable people in a similar position. This is borne out by the fact that the Claimants did not accept the £65,000 settlement figure the moment it was offered, but held out, not for more money but for a meaningful apology and a commitment to take lessons from Amanda’s death, to benefit other vulnerable young people in Amanda’s position.

1. 1. It is notable that in Fullick the action settled without service of a letter of claim or particulars of claim, for £17,000 and the Claimants’ Bill of costs totalled £122,000, to include the costs of attending two pre-Inquest hearings.  Deputy Master Keens allowed the costs of attending those hearings and the Defendant appealed on the grounds (inter alia) that costs of attending the Inquest should not be recoverable at all. Mrs Justice Slade, after duly considering the competing arguments, found that Deputy Master Keens, “did not err in his conclusion that the costs attendance at the Inquest hearing were reasonably and proportionately incurred. 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.”

1. 1. If one substitutes, ‘Amanda’ for ‘Ms. Jones’, ‘following a ligature on the Bradgate Unit’ for ‘at a Police Station’ and ‘the Defendants’ for ‘the Police’ the above quote could apply to this case; notably of course this case dealt with pre-Inquest reviews rather than an Inquest ‘proper’ but equally notably, there was not much in the way of ‘agreed matters’ as far as I have seen. As in Fullick and unlike Kazakhstan Kagazy, the civil claim in Amanda’s case was about much more than money. It challenged the Defendants’ systems and practices and asserted multiple breaches not only of the Defendants’ duty of care in negligence but of the European Convention on Human Rights as well as the Equality Act. Without repeating all of the facts there were concerns around keeping a young person with autism on the Bradgate Unit which Mr Smith rightly accepted must have been ‘torture’ for her, concerns around bullying, safeguarding, concerns around a young woman reporting rape and nothing being done about it, concern around a young woman ligaturing to the point of unconsciousness and no Serious Incident Report being made, concern about Amanda having access to a salt-like substance and so on.

1. 1. There were unanswered questions about why it had taken so long to recognise that Amanda needed to be moved from the Bradgate Unit, to seek or obtain funding for such a move and as to whose responsibility it was to seek and obtain such funding. There was even doubt as to Amanda’s cause of death, given the lack of tell-tale ligature marks and the availability of other potentially harmful substances which should not have been within reach of someone with her history of self-harm. There was so much more going on than simply a lack of level 1B supervision for a few hours upon her return on Christmas day; the situation was untenable, and this had gone on for months if not years.

1. 1. The question of whether the costs of the items in the Defendants’ table (at Point 6 in the Points of Dispute) should be allowed at all is different from the issue of whether the amounts claimed in respect of them is proportionate and reasonable; the Point of Dispute as drawn seeks to disallow all of these costs and make no offers in respect of any of them. In my judgement, the pre-Inquest reviews were of very significant use and benefit in the civil claim, both in respect of the issues referred to above (as to the treatment received by Amanda and its impact on the non-negligence aspects of the Claimants’ claim) and in respect of disclosure.

1. 1. Without having been more than robust as they are entitled to be (and, as guardians of the public purse, the public would expect them to be) the Defendants were trying to limit the scope of what the Coroner would be looking at and therefore to limit the disclosure available to the Coroner and hence to the Claimants. That again made the pre-Inquest reviews of significant use and benefit in the civil claim because, in plain terms, but for their representation at those pre-Inquest reviews, the weighty presence of Defendant lawyers may have prevailed upon the Coroner and key documents and facts might never have come to the fore.

1. 1. I find that these costs are in principle recoverable. They are relevant to issues in the civil claim so as to be recoverable as costs in that claim, and I have set out above the identification of outstanding issues necessary to the civil claim in respect of which the Claimants’ case would be advanced by participation in the Inquest, and what it was in that participation which would assist with the civil claim. Weighing the value of that assistance against the cost of pursuing that particular point in the Inquest, I also take the view that they are at first blush proportionate.

1. 1. It is a matter for the parties as to how much more time they would wish to devote to the necessary exercise (as Slade J found it to be in Fullick) of identifying and evaluating the relevance and utility to the civil claim of participating in the various items in the table at Point 6.

1. 1. I find that it was reasonable, proportionate and of use and benefit to the civil claim to attend and therefore to prepare for (and to travel to) the pre-Inquest review Hearings, and that it was reasonable for Ms. Phillips and Mr Desai both to attend. If the Defendants believe that more may be achieved in terms of reducing the £14,770.67, than it will cost to do so, by taking me to any specific items at a future line-item Assessment I will consider the position – the Claimants may say that the ‘holding’ General Point 1 is not sufficient to allow such an approach. I would certainly question whether it is worth going through (e.g.) the transcripts of the pre-Inquest reviews to try to isolate odd bits of ‘housekeeping’ (if any) that could be excluded here and there; the ‘High level’ decision is that the pre-Inquest review costs are, broadly speaking, recoverable on the facts in this case.

1. 1. I would add that whilst the use of hyperbole is a viable tool in rhetoric, the Defendants’ reference to ‘eye-watering’ costs at Point 6 is misplaced. Amanda died after months of inadequate care, culminating in her taking steps that ended her life (I do not say taking her own life because it is far from clear that she intended it to go as far as that) at the young age of twenty.

1. 1. In the context of the Claimants’ wish to get to the bottom of why such a vulnerable young person who had been making multiple ‘cries for help’ over the preceding months and years, and who seemed, based upon the background facts, to have had a reasonably clear pattern of harming herself at the first opportunity if her supervision levels should fall, had been put on such a low level of supervision hours before she died, I do not regard the costs as ‘eye-watering’ at all.

1. To end on a more positive point, I have made several references to Mr Smith acknowledging this or accepting that. To be clear, the advocates on both sides advanced their respective clients’ cases to the best of their ability and Mr Smith took every point that he was able to take. Where there were points that he did not press, that was in the performance of his overriding duty to assist the Court and I am most grateful to him and to Mr Buckley (and Ms Phillips) for their submissions.