Costs of Pre-Inquest Review Recoverable
Posted on 10th July 2023 at 10:10
By Sean Linley, Costs Draftsman
In the case of Briley v Briley [2023] EWHC 1470 (SCCO) (Hearing 21/09/2020) Costs Judge James considered whether costs relating to a Pre-Inquest Review Hearing were recoverable. The Defendant had sought to challenge the same but the SCCO ultimately held that the Pre-Inquest Review was of significant use and benefit in the civil claim and because of this relevance such time was recoverable as costs in the claim.
The time relating to the Pre-Inquest Review hearings were claimed at around £14,000.00. The matter settled before the Inquest took place and as such they were not costs of the Inquest proper.
The Arguments
The Defendant relied upon the principle in Roach v Home Office [2009] EWCH 312 QB which is that "only costs 'of and incidental to' the civil claim are recoverable". They disputed all time or items associated with matters of procedure, including attending at pre-Inquest hearings, assisting the Coroner, listening to witness statements being read aloud, and the verdict. Notably Costs Judge James she identified that the Point of Dispute appeared to be 'cut and paste' given the Inquest did not appear in the Bill of Costs.
The Defendant challenged all of the pre-Inquest review time and the associated costs. The Defendant stated that to the Court that:
"The question he said I must ask myself is, how did the Claimants' participation in the pre-Inquest reviews help their claims against the Defendants? Is this a case (as per Lynch) whereby the benefit to the Claimants was insufficient to justify the costs now being claimed?"
The Defendant's position was that if the Claimant wished to have representation at the pre-Inquest review hearings then it was a matter for them/the Legal Aid Agency and not for the Defendants to pay.
The Claimant sought to set out the relevant authorities which set out the principle that the costs of pre-Inquest Review Hearings were recoverable in principle so long as the same was incidental to the civil claim and proportionate.
It was also stressed that the Defendant's reliance on case law was not helpful:
"Given that the question of whether Inquest (or pre-Inquest review) costs are recoverable between the parties, seems to be entirely fact-specific in each case, I do not know how much those other cases might have helped, and have indeed specifically omitted a number of other Costs Judges' decisions for that very reason, but simply supplying a list of cases is not optimal and has not assisted me (or the Defendants)."
The Decision
Costs Judge James considered the case specific facts and concluded as follows:
"Slade J in Fullick reinforces the fact that the costs of attending an Inquest are potentially recoverable in a claim for damages following the death, but that the Court has to be careful to ensure that the costs allowed are those that are reasonably necessary (and proportionate) in the pursuit of the civil claim, which must be decided upon consideration of the Bill of Costs. Here, I have what would at the time have been a relatively early electronic Bill, which has sufficient detail to enable me to assess whether the sums claimed do indeed relate to investigation of the civil claim, especially as assisted by the learned submissions of the advocates who attended before me.
Fullick also reminds the reader that Proportionality does not just relate to the sums of money involved; in cases such as this one, finding out what caused such a death is a very significant factor as well. Due to her various health issues, Amanda did not have and may never have had any prospect of a career, let alone a high-earning one. Nor was she in a relationship (not counting 'Declan' who may or may not have existed) and nor had she had any children. Those facts close off a great many potential heads of loss, but that does not mean that Amanda's life was not worth anything nor that her life was not worth more than £65,000.
Obviously, it was, but on the facts in this case I would say that, as important to the Claimants as the money damages, was finding out exactly what happened to Amanda and why so as (hopefully) to avoid the same sad fate befalling any other vulnerable people in a similar position. This is borne out by the fact that the Claimants did not accept the £65,000 settlement figure the moment it was offered, but held out, not for more money but for a meaningful apology and a commitment to take lessons from Amanda's death, to benefit other vulnerable young people in Amanda's position.
It is notable that in Fullick the action settled without service of a letter of claim or particulars of claim, for £17,000 and the Claimants' Bill of costs totalled £122,000, to include the costs of attending two pre-Inquest hearings. Deputy Master Keens allowed the costs of attending those hearings and the Defendant appealed on the grounds (inter alia) that costs of attending the Inquest should not be recoverable at all. Mrs Justice Slade, after duly considering the competing arguments, found that Deputy Master Keens, "did not err in his conclusion that the costs 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. Consideration should be given to whether all or only some of the steps in the Inquest proceedings are relevant to the civil claim. If they are, whether the costs incurred in participation by the Claimant in each of those steps is proportionate and reasonable. If some of those steps are agreed, such as the giving of certain evidence, it is unlikely to be proportionate or reasonable for a receiving party to attend a pre-hearing review to deal with agreed matters."
If one substitutes, 'Amanda' for 'Ms. Jones', 'following a ligature on the Bradgate Unit' for 'at a Police Station' and 'the Defendants' for 'the Police' the above quote could apply to this case; notably of course this case dealt with pre-Inquest reviews rather than an Inquest 'proper' but equally notably, there was not much in the way of 'agreed matters' as far as I have seen. As in Fullick and unlike Kazakhstan Kagazy, the civil claim in Amanda's case was about much more than money. It challenged the Defendants' systems and practices and asserted multiple breaches not only of the Defendants' duty of care in negligence but of the European Convention on Human Rights as well as the Equality Act. Without repeating all of the facts there were concerns around keeping a young person with autism on the Bradgate Unit which Mr Smith rightly accepted must have been 'torture' for her, concerns around bullying, safeguarding, concerns around a young woman reporting rape and nothing being done about it, concern around a young woman ligaturing to the point of unconsciousness and no Serious Incident Report being made, concern about Amanda having access to a salt-like substance and so on.
There were unanswered questions about why it had taken so long to recognise that Amanda needed to be moved from the Bradgate Unit, to seek or obtain funding for such a move and as to whose responsibility it was to seek and obtain such funding. There was even doubt as to Amanda's cause of death, given the lack of tell-tale ligature marks and the availability of other potentially harmful substances which should not have been within reach of someone with her history of self-harm. There was so much more going on than simply a lack of level 1B supervision for a few hours upon her return on Christmas day; the situation was untenable, and this had gone on for months if not years.
The question of whether the costs of the items in the Defendants' table (at Point 6 in the Points of Dispute) should be allowed at all is different from the issue of whether the amounts claimed in respect of them is proportionate and reasonable; the Point of Dispute as drawn seeks to disallow all of these costs and make no offers in respect of any of them. In my judgement, the pre-Inquest reviews were of very significant use and benefit in the civil claim, both in respect of the issues referred to above (as to the treatment received by Amanda and its impact on the non-negligence aspects of the Claimants' claim) and in respect of disclosure.
Without having been more than robust as they are entitled to be (and, as guardians of the public purse, the public would expect them to be) the Defendants were trying to limit the scope of what the Coroner would be looking at and therefore to limit the disclosure available to the Coroner and hence to the Claimants. That again made the pre-Inquest reviews of significant use and benefit in the civil claim because, in plain terms, but for their representation at those pre-Inquest reviews, the weighty presence of Defendant lawyers may have prevailed upon the Coroner and key documents and facts might never have come to the fore.
I find that these costs are in principle recoverable. They are relevant to issues in the civil claim so as to be recoverable as costs in that claim, and I have set out above the identification of outstanding issues necessary to the civil claim in respect of which the Claimants' case would be advanced by participation in the Inquest, and what it was in that participation which would assist with the civil claim. Weighing the value of that assistance against the cost of pursuing that particular point in the Inquest, I also take the view that they are at first blush proportionate.
It is a matter for the parties as to how much more time they would wish to devote to the necessary exercise (as Slade J found it to be in Fullick) of identifying and evaluating the relevance and utility to the civil claim of participating in the various items in the table at Point 6.
I find that it was reasonable, proportionate and of use and benefit to the civil claim to attend and therefore to prepare for (and to travel to) the pre-Inquest review Hearings, and that it was reasonable for Ms. Phillips and Mr Desai both to attend. If the Defendants believe that more may be achieved in terms of reducing the £14,770.67, than it will cost to do so, by taking me to any specific items at a future line-item Assessment I will consider the position – the Claimants may say that the 'holding' General Point 1 is not sufficient to allow such an approach. I would certainly question whether it is worth going through (e.g.) the transcripts of the pre-Inquest reviews to try to isolate odd bits of 'housekeeping' (if any) that could be excluded here and there; the 'High level' decision is that the pre-Inquest review costs are, broadly speaking, recoverable on the facts in this case.
I would add that whilst the use of hyperbole is a viable tool in rhetoric, the Defendants' reference to 'eye-watering' costs at Point 6 is misplaced. Amanda died after months of inadequate care, culminating in her taking steps that ended her life (I do not say taking her own life because it is far from clear that she intended it to go as far as that) at the young age of twenty.
In the context of the Claimants' wish to get to the bottom of why such a vulnerable young person who had been making multiple 'cries for help' over the preceding months and years, and who seemed, based upon the background facts, to have had a reasonably clear pattern of harming herself at the first opportunity if her supervision levels should fall, had been put on such a low level of supervision hours before she died, I do not regard the costs as 'eye-watering' at all."
Impact and Analysis
Briley demonstrates that the recoverability of Inquest costs as to all aspects which will be considered on a case by case basis and specifically as to the question whether such costs are of use in the civil claim. There are two distinct questions at play a. whether such time is recoverable at all and b. to what extent the same is recoverable (i.e. proportionality and reasonableness).
There are also some important comments around the Defendant's approach to such challenges, setting out a list of case law was not helpful and did not engage in the case specific facts. The use of hyperbolic language was also criticised and the SCCO noted the 'cut and paste' nature of the dispute.
Once it is established that the time is recoverable in principle then the Court can go through the same on a line by line basis though there are questions abound about whether this is in itself a proportionate exercise and whether the Paying Party is entitled to raise this issue if they do not identify such an objection in the Points of Dispute.
Overall, this is a case which sets out the correct approach to be taken. Simply stating that such time is procedural is not helpful. Practitioners should give thought as to how time relating to an Inquest is of use in the civil claim and be prepared to justify this at assessment.
One aside point of note is that October's Fixed Costs Reforms leave a glaring blackhole for Inquest Costs. There is no mechanism currently to recover Inquest costs separately and it appears they will be wrapped up in the fixed recoverable costs stage. This is somewhat concerning from an access to justice perspective. We will be monitoring the relationship between inquest work and fixed recoverable costs as the October reforms take effect but it is something Practitioners should be aware of where the October reforms apply.
Should you have any queries arising from this article or upon costs generally then please do not hesitate to get in touch with our friendly team either via phone 01482 534567 or e-mail info@carterburnett.co.uk.
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