Costs of attending a Pre- Inquest but not the Inquest – recoverable?
It is trite law that where a between-the-parties costs order has been made, a receiving claimant is entitled to recover costs from a paying opponent for attending an Inquest, where those costs have been incidental to subsequent civil proceedings. The court in deciding the level of those costs, will also consider whether the prior step of attending the Inquest was of use and service in the proceedings, was relevant to an issue or issues, and was attributable to the defendant’s conduct in the claim (see Roach v The Home Office [2009] 2 Costs LR 28 and Re Gibson’s Settlement Trusts [1981] Ch 179).
That deals with the principle of recoverability, but what happens if the case settles before the Inquest has taken place, but there have been Pre-Inquest hearings : to what extent can a paying party be compelled to put a hand into a pocket to meet a claimant’s costs of instructing counsel and solicitors to attend such hearings?
That was the issue in Briley v Leicester Hospitals NHS Trust and others [2023] EWHC 1470 (SCCO). On 28 December 2016, the claimant, whilst in the care of the defendants, had taken her own life. Her family had instructed solicitors with a view to bringing proceedings for negligence. As part of a fact finding exercise, the firm had engaged in extensive correspondence with the coroner and had attended Pre- Inquest hearings.
On 16 November 2018, three days before the Inquest was due to commence, the Claimants had accepted an offer of £65,000 under CPR Part 36, plus letters of apology. When it came to an assessment of the costs, it was their case that the time spent in preparation for the Pre-Inquest review hearings was of direct relevance to the civil claim and had assisted in achieving such an early settlement. For the defendants, it was argued that as the matter had settled before the Inquest had taken place, those costs (amounting to £14,770.67) were not costs of the Inquest proper, and should be disallowed.
Master James preferred the Claimants’ submissions holding that the costs were relevant to issues in the civil claim so as to be recoverable as costs in that claim, and in weighing the value of that assistance against the cost of pursuing that particular point in the Inquest, the costs were “at first blush”, proportionate. Accordingly, all the Pre-Inquest costs were recoverable even though there had never been an Inquest “proper”.
Whilst the decision has generated much interest in the legal press, the Master was doing no more than applying binding case law, with the one refinement that in Briley, there had been no Inquest, only Pre- inquest hearings.
In Fullick v The Commissioner of Police for the Metropolis [2019] Costs LR 1231, Slade J had also been required to address the recoverability of Pre-Inquest costs. It had been the defendant’s contention that the attendance at the first Pre-Inquest Hearings had not fallen within the category of evidence gathering for the subsequent civil claim, but Slade J accepted the finding below that that had been the first opportunity for the claimants to “engage” with issues of concern, which included expert evidence on causation and the position the deceased had been left in at the police station when she became ill. As to the second Pre-Inquest hearing, that had been “getting questions to the coroner” which was also recoverable. It followed that the costs of those hearings were allowed, and in Briley, the Master was simply applying, (correctly at that), the principles in Fullick.
That, however, is not necessarily the end of the story. From 1 October 2023, the amended CPR 45 will come into force, and under CPR 26, cases valued between £25,000 and £100,000 will enter the Fixed Recoverable Costs Regime’s intermediate track, thereby sweeping up a large number of cases involving deceased claimants where Inquest costs have been incurred.
Such actions currently fall within the multi-track, meaning that under Roach, those costs are recoverable in principle. However, cases going into the intermediate track will be subject to fixed costs and the new rules do not appear to cater for Pre-Inquest costs, still less the costs of attending the Inquest “proper”, save that ‘new’ CPR 45.10 provides an escape route from fixed costs where a party is “vulnerable”. Fertile ground for satellite litigation?. Of course!
UPDATE 21st July 2023
Whether or not the Ministry of Justice read the original blog about the lack of any allowance for Inquest costs in the Fixed Recoverable Costs (FRC) Regime, and then acted upon it by issuing a consultation paper within 24 hours, we cannot be sure! Nonetheless, the consultation, which will close on 8 September, seeks views on whether the costs of an Inquest should be separately recoverable (subject to quantum), as currently is the case where claims have been allocated to the multi-track, or settle pre-issue, and therefore are not subsumed within any fixed costs payable. The MOJ “provisionally” supports a further rule change, to take effect in April 2024, to provide for such an eventuality because without such a provision “ …..this could mean that the level of costs involved in the inquest will make the pursuit of any claim for compensation uneconomic, or that, if a bereaved individual’s claim is pursued, they will need to fund most of (if not all) of the costs involved in the representation at the inquest”. With the case law absolutely clear about the principle of recoverability where FRC do not apply (see Roach v Home Office), this is a welcome, if belated , recognition by the Ministry that fixed costs do not fit all types of case. Not only that, together with the provision in the draft CPR 45.10 for vulnerable parties, this proposal, if introduced, will provide another escape route from them.
Colin Campbell
17 July 2023
