COSTS: THE COSTS OF ATTENDING AN INQUEST: THE APPROPRIATE APPROACH

In   Douglas v Ministry of Justice & Anor [2018] EWHC B2 (Costs) Master Leonard considered the issue of the recoverability of costs of attending an inquest. There  is a highly nuanced approach. There is support for some of the costs of a deceased party attending the inquest being recoverable. It adds an added layer of complexity to representation at an inquest where government and corporate bodies will, inevitably,  have legal representation.  By making an admission beforehand a defendant could deny the deceased’s family the chance of effective representation.

 

THE CASE

The case concerned a young prisoner who committed suicide in prison in November 2013.Proceedings were issued in November 2014.

Pre-inquest hearings took place in April, July and September 2015. The claimant’s legal team attended and took part in the process in relation to identifying the scope of the inquest.

On the 8th October 2015 the defendants made an open admission of liability, admitting full liability on a joint basis.

The claimant responded with a detailed request on the basis of the admissions. The defendants replied stating that it did not consider it would not state the basis on which the admission was made out, a full admission of liability had been made on the basis of what was in the claim form.

The inquest started on the 12th October 2014 and lasted several weeks. Counsel and solicitors attended to hear the jury’s verdict.

On the 7th March 2016 the claimants accepted an offer from the defendants of £13,500. Particulars of Claim were never served.

 

THE ISSUE ON ASSESSMENT

The question was whether  the defendants were liable for the costs of the inquest (some £85,000).

THE GIBSON PRINCIPLE

The Master considered the relevant principles.

 The arguments set out above address the question of recoverability in principle, given that (as is common ground) under the principles identified inRe Gibson’s Settlement Trusts [1981] 1 All ER 233, the work for which the Claimant seeks to recover the cost must have been (a) of use and service in the claim; (b) relevant to the matters in issue in the claim; and (c) attributable to the Defendants’ conduct. All three tests must be passed.

41.          Mr Whittaker, in submissions, suggested that depending upon the facts of the case the third of the Gibson tests might carry less weight than the others. I am unable to agree: each seems to me to be of equal significance.

THE JUDGMENT

The judgment contains a detailed consideration of the legal test and the submissions of both sides.  Master Leonard concluded.

86.          To put the issues in their proper context, it is necessary to resolve the dispute between the parties as to the nature and extent of the joint admission made by both Defendants on the 8 October 2015. In my view, read in context it was a full, unqualified admission of liability to every claim endorsed on the claim form, including all of the specified breaches of the ECHR and the Claimant’s right to declaratory relief. To the extent that the unqualified and complete nature of the admissions made might have remained in doubt, BLM’s letter of 9 October 2015 should have been sufficient to remove it.

87.          As Ms Reeves submits, the Defendants could not realistically have been expected to offer detailed admissions against an unparticularised case, but they did decisively dispose of any issue of liability in relation to the breaches of duty and of the ECHR referred to in the Claimant’s claim form.

88.          This left the question of the amount of damages to which the Claimant was entitled. The Defendants say that that was the only issue left. The Claimant would say that there was also the question of vindication.

89.          I am not persuaded that for the purposes of applying the Gibson principles (as opposed to, say, considering proportionality) the distinction is material. Full identification of the Defendants’ specific failings would allow the Claimant to present a fully pleaded case, would (for the reasons given by Lord Dyson in Rabone at paragraph 85) provide a full and detailed basis for measuring an appropriate award of damages and would provide the vindication that she sought.

90.          I have no difficulty in accepting that the inquest, as contributed to by the Claimant’s representatives, provided details about those failings additional to those identified in the PPO report. I have had more difficulty in identifying the extent to which, on the facts of this case, it ultimately made, or might have been expected to make, any material difference to the Claimant’s case on quantum, or her right to vindication.

91.          The PPO report had already demonstrated that the breaches admitted by the Defendants on 8 October 2015 lay in a combination of systems failure and individual error or neglect. That report seems to me, self-evidently, to have been a document of great significance for the Claimant’s case, and I regard the Defendant’s suggestion that it was effectively irrelevant to be insupportable.

92.          The inquest was able to provide further evidence in relation to the nature and extent of the Defendants’ failures, but given the information already available there does not seem, at the time of the Defendants’ admission of liability, to have been any basis for expecting that anything would emerge from the inquest that would materially change what was likely to be, on the facts of this case, a relatively modest award of damages.

93.          As for vindication, the apology offered to the Claimant on 21 January 2016 referred back to the admissions already made in October 2015. Apart from a broad acceptance of the inquest’s findings there seems to me to be little in it that could not have been offered before the inquest.

94.          For those reasons I am unable to accept Mr Whittaker’s submission to the effect that it was not possible, prior to the inquest, to settle the claim. I appreciate that the Claimant still sought details of specific failings by the Defendants but it seems to me that there was a perfectly sound basis for exploring settlement, on the basis of what was already known, as soon as the Defendants made an unqualified, full admission of liability. The Defendants were evidently willing to initiate a discussion immediately, but the Claimant was not.

95.          Mr Whittaker’s suggestion that one can favourably compare the cost of attending the inquest with the cost of preparing and trying a case (not, I emphasise, accepted by the Defendants) is weakened by this. It is akin to arguing that it was necessary to incur costs comparable to trial costs before the Claimant could settle.

96.          Having reached those conclusions, the next question in my mind was whether it would be right to conclude that the Claimant’s participation in the inquest procedure fails the Gibson tests in that it did nothing to contribute, in any material way, to the formulation and settlement of her case. In my view it would be wrong to disallow all time spent at the inquest on that basis. The new evidence of failures by the Defendants that emerged in the course of the inquest may not have added much to the quantum of damages, but it was not irrelevant. In any case one must not use hindsight in applying the Gibson principles. So, for example, the cost of preparing witness evidence will normally be recoverable as part of the cost of a successful claim even if that claim settles before the witness evidence is ever needed.

97.          It seems to me to follow that in principle the Claimant should, in relation to inquest costs, be entitled to recover the reasonable and proportionate costs of gathering the evidence that would allow her to present (and if necessary plead) her case against the Defendants.  The conclusions I have summarised above may have a bearing upon the issues of reasonableness and proportionality that remain to be determined, but they do not offer a sound basis for disallowing the inquest costs in their entirety.

98.          That conclusion does however have to be qualified in the following respects. First, the Defendant on 8 October 2015 made (as I have found) an unqualified, complete admission of liability to every breach of duty and of the ECHR alleged by the Claimant. The Claimant’s case is that her costs of attending the inquest should be allowed as if no such admission had ever been made. That is not to my mind a workable proposition. For the period from 8 October 2015, the Claimant’s case would have been based upon the admissions the Defendants had already made.

99.          Second, the work undertaken should have sufficient connection to the claim against the Defendants to justify recovery of the cost against them. The Claimant seeks the cost of full, active participation in an inquest process designed to identify all of the systematic and individual failures that led to the avoidable death of Mr Douglas. That includes the cost of obtaining evidence of failures on the part of individuals and bodies for which the Defendants have no responsibility.

100.      The Defendants had their own procedures, their own records, and their own witnesses. To the extent that (for example) they might not have been supplied with pertinent information, so much will have been apparent from the records and the evidence of their witnesses. Evidence of the failures of individuals and bodies other than the Defendants will have added nothing material to that.

101.      For those reasons my general conclusions on recoverability on the Gibson principles  (subject to arguments on reasonableness and proportionality) are as follows.

102.      The costs of attending the inquest will be recoverable insofar as they involve participation in the securing of disclosure from the Defendants and the obtaining of witness evidence from the Defendants. Seeking disclosure, for example, from the London Borough of Tower Hamlets, and enquiring into its possible failures, is not to the point.

103.      Nor would work undertaken in relation to the possible apportionment of liability between the Defendants and other parties meet the Gibson tests. Even before liability was admitted in full on 8 October 2015 the evidence to be considered, for the purposes of preparing a claim against the Defendants, was evidence of the Defendants’ failings, not those of others.

104.      Participation in the inquest’s general procedural and “housekeeping” matters does not to my mind qualify under the Gibson principles and must be excluded, with one exception. I find myself agreeing with Master Campbell and disagreeing with Master Rowley in this respect: if one accepts (as I do) that the cost of attending the inquest to obtain evidence that would support the Claimant’s case against the Defendants is recoverable, then it would follow that the cost of making submissions designed to secure a verdict that would assist the Claimant’s case is also recoverable.

105.      I would not however extend that to attendance at the Coroner’s summing up, which is a matter for the Coroner and not in any respect attributable to the preparation of the Claimant’s case. Nor would I consider time spent waiting for the jury’s verdict to be recoverable, at least in this case: attendance at the giving of the verdict was not in itself essential given that a record of the verdict would be available. Waiting (between 29 October and 2 November) for the verdict to be given would have added nothing whatsoever to the preparation of the Claimant’s case.

106.      Given however that a representative of the Claimant did in fact attend the giving of the verdict on 3 November, I can accept that the attendant cost is recoverable on Gibson principles, just as I would accept (subject to any arguments about duplication etc.) that a review of the verdict after the event would be recoverable. The verdict supported the Claimant’s case and, if the matter had not settled, would no doubt have been relied upon by the Claimant.

107.      As regards the remainder of the inquest proceedings, the question will be the extent to which the work done on a given day meets the limited criteria I have identified: participation in the securing of disclosure from the Defendants and the obtaining of witness evidence from the Defendants.

108.      Ms Reeves for the Defendants has suggested that if I were not to exclude the inquest costs in their entirety, it might be necessary to undertake a line-by-line analysis of the work undertaken in order to identify the work undertaken by the Claimant, in the course of the inquest, that meets theGibson tests.

109.      I agree with that to the extent that such an exercise can be managed in a practicable and proportionate way. One might, for example, review a transcript of the entire proceedings to pick through those items of work that are recoverable and those that are not, but that could be a disproportionate exercise, especially where the reasonableness and proportionality of the costs claimed is already subject to a serious challenge.

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