The recent case of Roach v Home Office and Matthews v Home Office  EWHC 312 (QB) has reaffirmed that the costs of attending an inquest are in principle recoverable as costs incidental to civil proceedings.
The High Court considered the joined proceedings of two civil claims brought against the Home Office for damages following the suicides in custody of Craig Roach and Anna Baker. In both cases the claimants were parents of one of the deceased and had incurred costs attending the inquest into their child's death. Subsequently, they had each brought actions against the Home Office and reached terms of settlement which included costs to be assessed. Both claimants sought to recover the costs of attending the relevant inquest.
The High Court allowed both sets of claimants to recover these costs although the court emphasised that the costs must be justified and proportionate.
The two claims had many similar features. The background to one of the claims was as follows:
Craig Roach was a heroin addict who was remanded in custody on a charge of shoplifting. He was taken to HMP Exeter where he committed suicide on 18 January 2004. A 14-day inquest was subsequently held at which the jury returned a narrative verdict criticising the training of prison staff in dealing with prisoners who were detoxifying from drugs and alcohol.
Prior to the inquest, Mr Roach's parents instructed solicitors, who in turn instructed counsel. Exceptional funding was obtained for this from the Legal Services Commission with the family being required to make a contribution. The solicitors and counsel attended the inquest throughout. Counsel also attended a number of pre-inquest hearings directed by the coroner.
In 2007 Mr Roach's parents commenced proceedings against the Home Office and in due course a settlement offer of £10,000 was made and accepted. The Consent Order included a provision that the defendant (the Home Office) pay the claimants' reasonable costs, to be assessed if not agreed. The claimants submitted a Bill of Costs in the sum of £67,126.85 of which some 90% was attributed to the attendance of counsel and solicitors at the inquest. The Home Office challenged the reasonableness of this bill.
The matter came before the Senior Costs Judge, Master Hurst who held on 29 May 2008 that the receiving parties should receive 50% of their inquest costs, such division reflecting the dual purpose of attending an inquest: to assist the coroner and to obtain necessary evidence for a civil claim.
The issues on Appeal
The position with regard to costs in civil actions is governed by section 51 of the Supreme Court Act 1981 ("SCA") which provides:
- Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in:
- the civil division of the Court of Appeal;
- the High Court; and
- any county court,
shall be in the discretion of the court.
- Without prejudice to any general power to make rules of court, such rules may make provision for regulating matters relating to the costs of those proceedings including, in particular, prescribing scales of costs to be paid to legal or other representatives [or for securing that the amount awarded to a party in respect of the costs to be paid by him to such representatives is not limited to what would have been payable by him to them if he had not been awarded costs].
- The court shall have full power to determine by whom and to what extent the costs are to be paid.
The Home Office argued that there was a binding rule that the costs of one set of proceedings were never recoverable as costs of or incidental to another set of proceedings. This rule, it was argued, was deduced from a series of authorities over the past 60 years. Section 51 should be interpreted with this in mind. Therefore there was no jurisdiction to award such costs. Further, the Home Office argued that as the coroner had no power to award costs in the coroners' proceedings; such costs could therefore not be later recovered in separate civil proceedings.
By way of cross-appeal the Claimants argued that their inquest costs should not have been reduced by 50%.
In the High Court Mr Justice Davis dismissed the Home Office's appeals and allowed the cross-appeal. Davis J noted that courts were entitled, at their discretion, to award costs that were of and incidental to civil proceedings pursuant to s 51. It is long established that costs incurred prior to proceedings being issued may be recoverable as costs in the proceedings. The wording of s 51 suggests the courts have wide powers when awarding costs and it is not possible to read into that section a rule, as suggested by the Home Office, that inquest costs can never be awarded in this way. Davis J did suggest (obiter) that the fact that coroners cannot award costs themselves may be of significance. The situation may be different in cases where one court chooses to exercise discretion not to award costs and a claim for costs is later brought in a subsequent set of proceedings, claiming that the costs of the earlier action were incidental to the subsequent proceedings. However, as coroners have no discretion that issue did not fall to be decided. The fact remained that there was no general rule pursuant to s 51 that costs from one set of proceedings could not be costs of or incidental to another set of proceedings.
Davis J held that whilst coroners may not award costs, if the costs of attending the inquest are incidental to related civil proceedings those costs may be recovered. Davis J considered that attending an inquest could be very useful for solicitors and counsel as a means for gathering information and assessing the witnesses, with the future civil claim in mind. There is therefore no general rule that costs incurred in attending the inquest cannot be incidental to the civil proceedings.
Further, Davis J held that the costs judge had been wrong to divide the costs of the inquest on the basis that the legal representatives at the hearing played a dual role. He held this approach was incorrect and unworkable. The purpose of an inquest should not be confused with the purpose of a party's attendance at an inquest. It would be unjust to attempt to determine why a party had attended an inquest (particularly, whether they were already planning a civil action) when later assessing their costs and to award costs only to those parties who had attended the inquest with a civil action in mind. Instead, it was essential to have regard to considerations of relevance. As there was no suggestion that any part of the inquest had been irrelevant to the civil claim, there was no reason why 100% of costs could not in theory be recovered.
Davis J therefore referred 100% of the inquest costs back to Cost Judges for assessment. However he raised the issues of reasonableness, proportionality and relevance. In doing so, he left open the possibility that significant discounts could be awarded if costs claimed are unjustifiable.
The High Court has made it clear that costs incurred in preparation for and attendance at an inquest can be seen as costs incidental to a civil claim. The judgment suggests that it would make little sense for the costs of legal advisers preparing a civil case in their own offices, including gathering evidence and taking witness statements, to be recoverable whilst the costs of gathering the same information in an inquest courtroom were not. In fact, Davis J considered that attendance at the inquest could be more useful to a legal adviser than spending time in proofing witnesses afterwards, potentially resulting in lower costs.
Davis J declined however to provide guidelines as to what costs will and will not be recoverable in this way, preferring to leave each case to be decided by reference to its own circumstances. It is clear from the judgment that relevance, reasonableness and proportionality should all be considered. In particular it is worth bearing in mind that the Senior Costs Judge in Roach considered that the instruction by Mr and Mrs Roach of London counsel and London solicitors for an inquest in the West Country was not reasonable. Further, the level of success fee (100%) was not held to be reasonable. Davis J did not comment on these conclusions. As the costs were remitted to the Costs Judge for assessment, it is highly likely that a significant discount was to be applied in any event.
Therefore, whilst the decision opens the door to recovery of inquest costs without reduction, it should not be assumed that 100% of inquest costs will always be recoverable.