Update on the recoverability of inquest costs.

The case of Douglas v Ministry of Justice & Anor [2018] EWHC B2 (Costs) concerned the death of a prisoner who had committed suicide whilst in prison. At the time of death, the prisoner was 18 years of age and serving a life sentence for murder.

A claim was brought on behalf of the deceased against the Ministry of Justice (First Defendant), whom employed the prison officers, and Care UK (Second Defendant), whom employed the healthcare staff at the prison. Proceedings were issued in November 2014.

On 8 October 2015, the Government Legal Department, on behalf of both the First and Second Defendant, admitted “full liability on a joint basis” in addition to stating that they “would welcome the opportunity to explore terms of settlement”.

The Claimant responded the following day requesting confirmation of the basis on which liability was admitted. Namely, which failures were negligent and which were a breach of Articles of ECHR. The First Defendant confirmed that it did not consider it appropriate to address specific failings until the inquest had concluded but confirmed that an apology in general terms would be forthcoming. The Second Defendant advised that a full admission as to liability had been made on the basis of what was set out in the claim form.

An inquest began on 13 October 2015 and continued until 3 November 2015. Counsel attended the inquest and both Counsel and instructing solicitors attended the jury’s verdict.

On 7 March 2016, the Claimant accepted the Defendants’ Part 36 offer in the sum of £13,500.00 in settlement of the claim. Particulars of Claim were never served.

The matter in issue concerned the recoverability of inquest costs. Within Points of Dispute the Defendants had taken issue with such costs; the sum of which totalled, in the region of, £85,000.00 excluding pre-inquest costs.

Broadly speaking, the Defendants’ position was that “liability had been admitted in full, so attention should have turned to quantum” and, “whilst the cost of attendance at the inquest might in principle be recoverable, on the facts of this case little if any of the evidence at the inquest touched on quantum, so (the Defendants submit) on the facts of this case any costs of attendance should be claimed against the Legal Aid Agency, not the Defendants”.

In contrast, the Claimant, in addition to citing Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2 as to the necessity of attending at the inquest in relation to determining the precise nature of ECHR breaches, argued that:

“35.           The Defendants, say the Claimant, had merely admitted liability without admitting whether there was a breach of the ECHR at all, much less the nature of it. The Claimant’s solicitors had therefore no basis upon which to assess the quantum of the claim and to attempt settlement. In order to properly advise on quantum they needed to ascertain the extent of the Defendants’ failings, which were investigated at the inquest, and to consider the extent of the Defendants’ response to the inquest, which included admitting particular failings. Those admissions had not previously been forthcoming.”

In hearing submissions, Master Leonard considered the relevant principles, including those identified in Re Gibson’s Settlement Trusts [1981] 1 All ER 233. Namely, that for work which the Claimant seeks to recover, the work 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.

In reaching a conclusion, Master Leonard firstly looked at the admission of liability against the backdrop of whether it was possible to settle the claim following the admission:

“86.       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.

Whilst Master Leonard accepted that the inquest, as contributed to by the Claimant’s representatives, did provide further details to those outlined in the investigatory report, whether there was any material difference to the Claimant’s case on quantum, or right to vindication, as a result of attendance at the inquest needed to be looked at in detail.

Ultimately Master Leonard disagreed with the Claimant’s view that it was not possible, prior to the inquest, to settle the claim and having reached that conclusion:

“96.        ….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.”

The Claimant sought all of the costs of attending the inquest but, of course, the inquest process was designed to identify all of the systematic and individual failures that led to an avoidable death. The inquest, therefore, included costs relating to failures of individuals/bodies which did not relate to the claim, or for which the Defendants had no responsibility. Evidence of failures by individuals or bodies other than the Defendants would add nothing material.

“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.”

Work relating to the possible apportionment of liability between the Defendants and other parties would fail to meet the Gibson tests. Participating in general procedural aspects of an inquest [which includes waiting for a jury’s verdict] and attending a Coroner’s summing up also fail the tests. That said, Master Leonard expressed his view that:

“104.       …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.”

The approach that Master Leonard’s findings require is one of whether and to what extent work done on a given day meets the limited criteria set out in the concluding sections of the judgment. The method to be deployed in identifying inquest work that will be recoverable, in a practical and proportionate way, remains to be seen but nonetheless this is another clear demonstration that inquest costs are indeed capable of recovery.