Lynch -v- Chief Constable of Warwickshire Police, Warwickshire County Council and Coventry and Warwickshire NHS Trust
At the end of 2014 the Senior Courts Costs Office handed down a decision setting out a welcome new approach to the recoverability of costs for attending an inquest in civil proceedings. Master Rowley has made it clear that given the recent introduction of disclosure in inquest proceedings, the courts should take a hard line when considering what costs should be allowed.
Paul Edwards acted for the defendants in the costs proceedings.
Here, he analyses the importance of this decision.
Wrongful death claims may be linked to coroner inquests that deal with evidence relevant to the civil proceedings. In principle, inquest costs are recoverable as costs ‘of and incidental’ to the civil proceedings, as set out in Roach -v- Home Office. However the extent to which those costs are recoverable will depend on the specific facts of each case. Before Lynchthere had been a paucity of guidance as to how this should be approached although three principles had emerged with theGibson test stating that costs must:
- be of at least potential benefit to the claimant;
- relate in some way to the issues which arise or are likely to arise in the proceedings concerned; and
- be attributable in some way to the defendant.
The subjective nature of the test, while helpful in part, has had little impact on the levels of costs claimed. Often, parties will claim and recover huge sums for attendance by the whole litigation team at every stage of the inquest. Since the introduction of the Coroners (Inquests) Rules 2013, disclosure is now a regular part of the inquest process which means that parties have access to relevant documents and evidence outside of the hearing itself. This inevitably impacts on the need to attend the hearing.
Colette Lynch was murdered by her former partner in 2005. In the lead-up to the murder, the victim and her family contacted the police on a number of occasions to seek help and there was also interaction with health and social services. The defendants were sued by the victim’s mother on behalf of her estate, brother and children. The claims were eventually settled and the claimants obtained an order for costs, through which they sought to recover the costs of attending the ten day inquest. They claimed a total of £750,000 in relation to the inquest, £600,000 of which was for attendance - nearly half of the total bill for the civil claim. At the inquest the claimants were represented by senior and junior counsel, a partner and a trainee solicitor.
The court took the view that any time that did not serve as evidence gathering would only be recoverable if it fell within theGibson criteria. In this case, it did not. Time spent listening to statements fell into this category and was not recoverable.
Time spent ‘assisting the coroner’ was also not recoverable. The judge made it clear that costs such as housekeeping, pre-inquest hearings or procedural matters are irrelevant to the civil claim and are not recoverable. This also includes time spent summing up, witness evaluation, questions to the jury and the verdict itself.
The concept of use and benefit should be viewed in respect of the civil proceedings themselves and not negotiations outside of those proceedings. There was no real evidence to suggest that, in this case, the inquest verdict against the defendants ensured a settlement in the civil claim. It may have been that the evidence that came out of the inquest caused the defendants to re-evaluate their position in respect of the civil claim, but it did not affect the verdict itself. In any event, the use of evidence gathered from the inquest simply for negotiation in the civil claim is irrelevant.
In terms of the level of people in attendance, the judge agreed that, for those times when attendance is required, there needs to be someone present who can ask questions when the need arises. A trainee or grade D fee earner is unlikely to be experienced enough however senior counsel would be disproportionate. A more senior solicitor or junior counsel would be appropriate.
In relation to evidence from witnesses who had given evidence at earlier hearings then attendance may be necessary in the event that any witness says something different from previous statements. However, attendance for this purpose should be limited to a trainee solicitor.
Finally, in response to the claimant’s submission that additional attendance was needed to support and provide client care to the claimants, the judge held that this work should form part of the exceptional funding for the inquest and should not be linked to the civil claim.
While accepting that attendance at an inquest may be justified for the purposes of gathering evidence, to recover the costs of attending a claimant must demonstrate benefit to the civil claim and that the Gibson test has been satisfied.
Looking to reduce the costs claimed to a more reasonable level, we questioned the necessity and proportionality of attending, pointing out that, as a result of the disclosure that had taken place prior to the hearing, the claimants already had access to sufficient evidence in support of each particular in the civil claim. This, we said, negated the need for attendance at the inquest hearing itself.
We also objected to the level of representation contending that it was unnecessary and disproportionate to have a four-strong legal team.
We divided the claimant’s attendance into categories inviting the court to make a ruling that no attendance by the claimant’s litigation team was required on each. In response, the court considered it necessary to adopt a general approach, which, although not binding on other cases, was specifically formulated to be persuasive. To that end, the judge considered, in the context of the issue of proportionality, what would be the most efficient and cost-effective method of gathering evidence for the purpose of the civil claim.
The claimants contended that events should be taken as they happened and that so long as the attendances and associated work were of some use and benefit to the civil claim they should be recoverable. However, the court adopted the approach suggested by us, extracting periods of time that were incidental to the civil claim and allowing only the reasonable costs for those aspects.
On the facts, the court found the claimant’s costs to be globally disproportionate. Indeed, while accepting that the case commenced before the costs management regime was introduced, the judge held it to be ‘inconceivable that the approach adopted by the claimants in this case would be upheld as a proportionate method of bringing these claims to a civil hearing. No case managing judge would allow sums of the magnitude claimed here to be spent in the working up of the claim before the close of pleadings in the court proceedings’.
What does this mean?
This decision is a remarkable success for defendants who are often faced with eye-watering bills of costs for attendance at an inquest by claimant litigation teams. While attendance should be allowed where it is of use and benefit to the civil claim, the robust approach taken in this case will hopefully serve as a tool for management of such costs, and is clearly aligned to the objective behind the civil justice reforms, of achieving proportionate costs in civil proceedings.