Lynch -v- Chief Constable of Warwickshire Police, Warwickshire County Council and Coventry and Warwickshire NHS Trust
The Senior Courts Cost Office has today 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. This was set out in the decision of Roach -v- Home Office. The extent of the recoverability of those costs will depend on the specific facts of each case and there has been a paucity of guidance as to how this should be approached. The decision in re Gibsons Settlement Trustsprovided some assistance and set out three principles, otherwise known as the Gibson test, to consider. 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 now have access to relevant documents and evidence outside of the hearing itself. This inevitably impacts on the need to attend the hearing.
Facts of the case
Colette Lynch was murdered by her former partner Percy Wright 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. Following the murder, the defendants were sued by the victim’s mother on behalf of her estate, her brother and her 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 inquest.
The claimants sought to recover their costs of attendance at the inquest from the defendants in the civil claim. The costs claimed relating to the inquest amounted to £750,000, of which approximately £600,000 was for attendance – nearly half of the total bill for the civil claim. The claimants were represented at the inquest by a team comprising senior and junior counsel, a partner and a trainee solicitor.
While accepting that, in accordance with Roach, attendance may be justified for the purposes of gathering evidence, recoverability of the costs of attending requires demonstration of benefit to the civil claim and satisfaction of the Gibsontest.
The defendants specifically raised the issues of necessity and proportionality, 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, thereby negating the need for attendance at the inquest hearing itself.
The defendants also objected to the level of representation and contended that it was unnecessary and disproportionate to have as many as four people in the attending legal team, as was the case on many days of the 10 week inquest.
The claimant’s attendance was divided into categories and the court was invited to make a ruling in respect of each category that no attendance by the claimant’s litigation team was required. In order to address this, 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 as 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 the defendants, 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’.
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.
According to the judge ‘it is rarely the case, in my view, that parties have every last piece of evidence to hand before embarking on proceedings. There are usually gaps to some extent which are filled as the case progresses’.
Time spent assisting the coroner
In his decision, the judge set out what costs would and would not be recoverable. Of real importance to defendants is the decision that time spent ‘assisting the coroner’ is 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.
Of use and benefit
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 for the task. Senior counsel would be disproportionate. The representative should be a more senior solicitor or junior counsel.
The judge did not believe that it was reasonable or necessary for a trainee solicitor to attend as a note taker in addition to the solicitor or counsel attending, provided that there has been previous disclosure.
In relation to evidence from witnesses who had previously given evidence at earlier hearings (in this case an Independent Police Complaints Commission hearing) 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.
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.