The recoverability of costs of an inquest as costs of and incidental to subsequent civil litigation (section 51 of the Senior Courts Act 1981) continues to be an area of uncertainty for those representing claimants and defendants.
On the claimant’s side, the question is whether and to what extent the costs of attending the inquest on behalf of the deceased’s family can be recovered in any subsequent civil claim that is brought. On the defendant’s side, there is an interest to avoid or minimise a liability which may be considerable if the inquest has lasted for a number of weeks. The costs of attendance at an inquest will usually be incurred costs and not subject to budgeting. Two cases from this year provide some helpful guidance on recoverability and the approach to proportionality.
Recoverability of inquest costs
The relevant principles remain those in In Re Gibson’s Settlement Trusts. The work for which the claimant seeks to recover must be:
- Of use and service in the civil claim.
- Relevant to the matters in issue in the claim.
- Attributable to the defendant’s conduct.
The test has been considered on various occasions and most notably at High Court judge level by Clarke J (as he then was) in The Bowbelle and Davis J (as he then was) in Roach v Home Office. In light of these authorities, inquest costs can, in principle, be recovered although the application of the three-strand test turns on the facts of the individual case. It has generally been thought that inquest costs would not be recoverable in circumstances where a defendant had made a full admission of liability in advance of the inquest taking place (following Davis J in Roach v Home Office, who stated (at paragraph 48) that a paying party might seek to avoid or minimise its potential liability for costs by admitting liability (although he did not go on to say how effective an admission would be!).
However, Master Leonard in Douglas v Ministry of Justice concluded that some inquest costs were recoverable under the In Re Gibson’s test even in circumstances where a full admission of liability was made in advance of the inquest. The case concerned a suicide at HMP Belmarsh. The Prison and Probation Ombudsman’s investigation reported that there were multiple institutional failings that led to the death of the claimant’s 18 year old son who committed suicide one month after transfer from a young offender’s institution to an adult prison. A claim in negligence and for breaches of Articles 2, 3, and 8 of the European Convention on Human Rights was issued against the Ministry of Justice and Care UK (the company that engaged healthcare workers at the prison) and then stayed pending the outcome of the inquest. An inquest was listed for three weeks. Before the inquest began, the defendants wrote to the claimant making a general admission of liability. They did not specify which breaches of duty or claims were admitted. The jury returned a narrative verdict that criticised the conduct of both defendants. The claim then settled post inquest for a sum of £13,500.
The claimant’s costs of work attributable to the inquest were over £80,000 and this was sought as part of the costs of the civil claim. The defendant said the costs were irrecoverable under the In Re Gibson’s principles because the only outstanding matter in the case was quantum and the inquest did not assist in resolving that issue.
Master Leonard said that for the purpose of applying the In re Gibson’s principles (as opposed to proportionality), no distinction was to be drawn in this particular case as to whether the claimant wanted to obtain evidence as to quantum or to obtain vindication from the defendants. He considered that a full identification of specific failings by the defendants would allow the claimant to present a fully pleaded case, provide a full and detailed basis for assessing the appropriate measure of damages as well as providing vindication to the claimant. On the facts, he did not think much had emerged from the inquest to affect the quantum of the claim or the nature of the apology that had already been given. He did not accept the claimant’s argument that the case could not be settled before the inquest, but it did not follow that inquest costs were not recoverable. But he rejected the defendant’s submission that the inquest did nothing to contribute in any material way to the formulation or settlement of the case. The new evidence may not have added much to quantum, but it was not irrelevant and it was important not to use hindsight in applying the In Re Gibson’s principles.
It followed that the claimant was entitled to recover the reasonable and proportionate costs of gathering evidence that would her allow her to present a fully pleaded cases against the defendants. But he made clear that findings he had made (including that the claim could have been settled pre-inquest) would be relevant to the reasonableness and proportionality of costs (which was to be determined later). Further, it was only the cost of evidencing failures against these defendants that could be recovered (not against other third parties). On that basis, he found that seeking disclosure from the defendants and obtaining witness evidence from them was recoverable. He also concluded that the costs of making submissions designed to secure a particular verdict were recoverable (although there are conflicting cost judge views on this point). Attendance at the verdict and reviewing of the verdict were also recoverable.
It is worth noting that Master Gordon-Sakar in the Powell case (mentioned below), which was heard after Douglas, reached a different view about work done in securing a particular verdict. He did not consider such work to be relevant to the civil proceedings because any impact that it had on settlement was speculative (paragraph 59).
This is a helpful authority for claimants seeking to recover inquest costs even in cases where a full admission of liability has been made prior to the inquest. Defendants can seek to minimise or avoid liability for inquest costs by making specific (as opposed to generalised) admissions of liability when they are in a position to do so
When to apply the proportionality test?
An interesting question arises as to what stage the proportionality test falls to be applied when a claimant seeks to recover costs of attendance at an inquest. Master Gordon-Saker in Powell v Chief Constable of West Midlands Police rejected the claimant’s argument that he should not decide proportionality before reaching a view as to whether inquest costs (and in that case costs of a criminal trial) were recoverable as costs of the civil claim.
In that case, the bill was £1.6 million in a claim that settled for £300,000 (the inquest costs were about £650,000). The old proportionality test applied and the senior costs judge held that he had to adopt the two-stage approach identified in Lownds which required him to consider first whether the “total sum claimed” was or appeared to be disproportionate. It was not, therefore, open to him to decide recoverability of costs and then apply proportionality to the balance. Despite the public importance of the case and the importance to the claimants (a death in custody where allegations of deliberate use of force resulting in death were made), he had little hesitation in concluding that the costs overall were disproportionate and hence the necessity test applied to detailed assessment.
Master Leonard went about things the other way round in Douglas. He was applying the new proportionality test in CPR 44.3(5). He did so on the basis that it is widely accepted that the new proportionality test falls to be applied after individual items have been assessed on grounds of reasonableness. Hence, the proportionality test fell to be applied after the claimant’s recoverable costs in accordance with the In re Gibson’s principles have been identified. This approach makes sense and avoids a situation where a claimant is penalised by application of the new stringent proportionality test in respect of costs that are assessed as not recoverable against the defendant in any event.
