Recoverability Of Inquest Costs And Proportionality

FULLICK & ORS v THE COMMISSIONER OF POLICE FOR THE METROPOLIS [2019] EWHC 1941 (QB)

This was the first appeal in which the recoverability of inquest costs in civil claims has fallen to be considered since introduction of the Jackson reforms.

It followed an assessment of costs by Deputy Master Keens in the SCCO when he allowed the sum of £88,356.22 as against an original claim of £122,000 excl VAT.

The claim was for damages for breach of Article 2 of the European Convention on Human Rights, negligence and misfeasance in public office following the death of Ms Jones who became ill at a police station.

The defendant challenged the Master’s decision on two grounds:

Ground 1

  • Costs of £88,356.22 were not proportionate to a claim which settled for £18,798 before the issue of a formal letter of claim and prior to service of proceedings. The Deputy Master wrongly proceeded on the basis that it was both reasonable and proportionate for the vast majority of the Inquest costs incurred by the Claimants to be recoverable as costs in the claim.

Ground 2

  • The Deputy Master erred in treating the Inquest as though it was a trial of the civil claim which led him wrongly to award the costs of all steps in the Inquest as costs in the civil claim.

The Honourable Mrs Justice Slade DBE allowed ground 2 of the appeal on the basis that the Deputy Master had failed when dealing with the documents section of the bill to decide which work claimed was relevant to pursuing the civil claim.

“The costs incurred by the Claimants in connection with the Inquest must be relevant to issues in the civil claim to be recoverable as costs in that claim. That requires identification of outstanding issues which are necessary to the civil claim in respect of which the Claimants’ case would be advanced by participation in the Inquest. The assessment also required the identification of what it was in that participation which would assist with the civil claim. The value of that assistance would then be weighed against the cost of pursuing that particular point in the Inquest.”

This decision is unsurprising. It has always been the case that to be recoverable, the costs associated with steps taken in the Inquest proceedings must be relevant to the issues in the civil claim. This aspect of the Deputy Master’s decision was remitted for redetermination.

The Judge however dismissed ground 1, finding that the Deputy Master had not erred in concluding that the costs of attendance at the Inquest hearing were reasonably and proportionately incurred.

Whilst the decision was inevitably case specific in many respects some of the observations will apply equally to other cases arising from deaths in custody where damages are generally low and a large portion of the ultimate costs claim is attributable to preparing for and attending the inquest.

Relevance

“the Deputy Master did not err in his conclusion that the costs [of] attendance at the Inquest hearing were reasonably and proportionately incurred… The cause of death and recommendations for changes in police procedure were relevant to the civil claim. The claim was for damages for breaches of Article 2 of the European Convention on Human Rights in relation to the death of Ms Jones at a police station. Evidence on the cause of death and actions and procedures of the police given in the Inquest and the verdict reached are relevant to those issues.”

Damages

“Unlike Kazakhstan Kagazy the civil claim in this case was about more than money. It challenged police practices and procedures and asserted breaches of Article 2 of the European Convention on Human Rights.”

Importance and Wider Public Interest

“The Deputy Master did not err in taking into account that the issues raised in the civil claim were not only financial but were of importance to the deceased’s family. The Inquest proceedings held the police to account in some measure for the death of Ms Jones. The settlement of the claim gave rise to agreement to revise policies, protocols and training which should avoid for the future the situation which arose in this case. These issues were of wider public interest than that of the Claimants.”

Pre Issue Settlement

In considering proportionality, the Deputy Master took into account that once the Inquest verdict had been delivered with a finding of at least partial responsibility on the part of the Defendant, the civil claim could be resolved shortly afterwards. Far from being a factor against allowing costs of the Inquest as costs of the civil claim, the approach of the Deputy Master is supported by observations of Mr Justice Davis at paragraph 48 of Roach that counsel were entitled to observe that the inquests in those cases in practice seemed to have the effect of causing the civil proceedings thereafter relatively speedy to be compromised.”

Pre Inquest Reviews

“it cannot be said that the Deputy Master erred in holding that ‘it would be [a] remiss in pursuing this claim not to be [at the first pre inquest review]… the Deputy Master did not err in deciding that costs of such attendance were payable and that they were proportionately and reasonable incurred” 

“Master Keens referred to what the Claimant’s representative did at the [the second Pre Inquest Review] hearing as ‘that is getting questions to the coroner, that they – or questions that they wanted to put to Dr Paul.’ … In my judgment it cannot be said that the Deputy Master erred in allowing the Claimant’s claim for the costs of the second pre-inquest review hearing.” 

A no doubt welcome decision to many and one that again emphasises that proportionality is not all about the money.

FULLICK & ORS v THE COMMISSIONER OF POLICE FOR THE METROPOLIS [2019] EWHC 1941 (QB)