The chicken and egg of inquest costs: recoverable for attending, yes; legal aid to attend, no

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The word “inquest” carries with its overtones of sadness. Before you can have an inquest, there must be a death, so the work of the coroner in investigating what has caused it will inevitably bring tears to the eyes of relatives and to those who have survived or witnessed terrible events in which others have died. Prominent and very much in the public eye at the moment has been the London Bridge inquest. It will be recalled that this inquest into the eight deaths following the terrorist attack close to London Bridge on 3 June 2017 lasted seven weeks and resulted in findings of unlawful killing by the Chief Coroner on 29 January 2019.

In anticipation of bringing subsequent civil claims against anyone whose negligence had caused the deaths, survivors and relatives of the deceased attended the inquest for the purpose of “evidence gathering” to support those claims. However, insofar as legal representation was concerned, they had to do that at their own expense, save where kind lawyers were prepared to work on their behalf pro bono.

With the next major inquest looming on the horizon (the Manchester Arena inquest is due to start next April), an issue which is assuming greater importance is whether legal aid should be made available for the bereaved. At present there is generally none. However, it is worth considering what would happen if public funds were provided which would enable bereaved families and survivors to be legally represented at inquests, with a view to bringing their civil claims thereafter. If that were done, the next question would be the extent to which the Legal Aid Agency would be able to recover its outlay if, in the subsequent action against the tortfeasor whose negligence had caused the loss of life, an award of costs were to be made in their favour.

To answer that question, it is convenient to start at the end rather than the beginning.

Before Roach v The Home Office, it was uncertain whether the costs of attending an inquest could later be recovered in a civil claim for damages as reasonable costs in that action where the claimant had won. In Roach, the deceased had died whilst in HMP Exeter. His parents subsequently recovered £15,000 damages for the negligence of the Home Office and, in due course, submitted a bill for £67,126 for the costs, of which about 90% was attributable to attending the inquest to establish the cause of their son’s death. Rejecting a submission by the Home Office that such costs were irrecoverable in the subsequent civil action, Davis J said this:

“Costs at an inquest are not incapable of being recoverable as costs incidental to subsequent civil proceedings”.

Thus, since Roach, it has been an established principle of law that the costs of attending an inquest are recoverable, but exactly the extent to which that is permissible is less clear cut. The parameters appear to be that “evidence gathering” is recoverable, which will encompass hearing the evidence of witnesses and observing their demeanour, considering what they have said, undertaking cross-examination and otherwise obtaining information or evidence for the proposed claim. On the other side of the dividing line, however, would be work “assisting the coroner” not incidental to the putative civil proceedings. An example would be disclosure of documents which help the coroner but are irrelevant to the civil claim. Given that in some cases, such as London Bridge, inquests can last several weeks, the potential for a hefty costs bill to be incurred for attendance, which is thereafter claimed as civil costs, is high.

As will have been observed, Roach is a case which pre-dates the civil procedure rule alterations that followed the recommendations for change made by Sir Rupert Jackson in his Report into the Costs of Civil Litigation. Accordingly, where inquest costs have been sought at detailed assessment following a successful damages claim, at least until now, no case has considered whether matters have moved on. This is so given that there is now the “new” proportionality test under CPR 44.3(5) and that there are now the Coroners (Inquest) Rules 2013 which deal with disclosure.

With the handing down of judgment in Fullick v The Commissioner of Police for the Metropolis on 25 July 2019, that has all changed. In Fullick, Slade J was required to assess the reasonableness of pre-inquest and inquest costs which had been claimed in a bill of £122,000. Since the damages had been £18,000, at detailed assessment that raised for the first time whether the costs of attending the inquest were proportionate, having regard to CPR 44.3(5) in force from 1 April 2013.

The background to the claim was that the deceased had attended voluntarily as a witness to a crime at a police station. Whilst there, she had become ill and died eight days later. At the subsequent inquest, the issue for the coroner had been to establish what had caused her death. Starting on 10 October 2016, the inquiry had lasted seven days, with the jury delivering a narrative verdict, that the deceased’s death had resulted from methadone and alcohol intoxication, coupled with inadequate police policies, procedures and training.

On appeal from the deputy master, Slade J was not persuaded that the recovery was disproportionate to the sum for which the case had settled when compared with the bill, even though the figures were approximately £100,000 apart. The case had not been just about money. The cause of death and recommendations for changes in police procedure had been relevant to the civil claim which had also been for damages for breach of Article 2 of the European Convention on Human Rights (ECHR). Evidence on the cause of death and actions and procedures of the police given in the inquest verdict were relevant to those issues. Given those factors, save in respect of two items, it could not be said that the decision of the the court below that the costs were proportionate was perverse, or one that was not open to the deputy master.

The two items in question related to documents time. What had not been done was the division of the work in order to establish what had been attributable to the civil claim, and to consider the categories and the subject matter of the tasks undertaken which were relevant to pursuing it. Whilst undertaking that exercise might be onerous, it was necessary, since the court might need to stand back in order to consider whether the total costs of participating in the inquest had been proportionate to its utility and relevant to outstanding issues in the civil claim. For that reason, the bill would need to be remitted to a different master in order to undertake that exercise in respect of both the items in the documents section.

Following Fullick, it is thus clear that the approach to the assessment of inquest costs has moved on since Roach. Costs which advance the civil claim remain recoverable in principle, but the “new” proportionality test will apply to them. In administering the test, comparing damages recovered against the size of the bill is not the only consideration. The court must also ask whether there were wider factors in play, such as ECHR considerations or procedures, policies and training which might need to be changed. Once the bill has been assessed, the proportionality test is to be applied to the bottom line figure, with the court needing to be careful to separate out any costs which have not advanced the civil claim, having regard to those criteria.

Back to legal aid. The London Bridge inquest is reported to have had the following legal representation on behalf of the state:

  • The Home Secretary: three Queen’s Counsel.
  • Eight public bodies: all represented by lawyers.
  • Those families whose members had perpetrated the terror attack: all publicly funded.

For the relatives of the deceased, the bereaved and the survivors, however, there had been nothing, which brings into sharp focus the well known expression “equality of arms”.

Were legal aid to be made available for those attending inquests, not only would that legal balance be redressed, but in the subsequent civil proceedings, if won, the Legal Aid Agency would be recompensed for its outlay. This is because the costs would be recoverable from the tortfeasor or their insurers and there would be no drain on public funds. In that way, legal aid would work along the lines of a bank overdraft, albeit not repayable on demand, but upon success at the end of the case. That was the way that legal aid used to work before it was withdrawn for most types of litigation and replaced by conditional fee agreements. Bearing in mind these factors, and with the Manchester Arena inquest following on in April, the case for the Legal Aid Agency to fund the costs of attending inquests is becoming all the more compelling.