Many will recall the much publicised judicial review brought by the Adath Yisroel Burial Society, which led to the Senior Coroner for Inner North London’s “cab rank” burial policy being quashed. When it came to costs, the Court held that the Coroner had “crossed the line” from merely seeking to assist the Court on aspects of law and procedure into arguing the correctness of the decision under challenge. At that point she was no longer protected by the general rule that coroners who remain neutral in judicial review challenges to their decisions should not be held liable for the applicant’s costs. Partial costs were awarded against her.
Even ‘neutrality’ in the face of an inevitably successful application will not necessarily mean costs will be avoided if the Coroner behaves unreasonably. In Hopkins the Swansea Coroner unreasonably refused to sign a consent form when the bereaved family’s s.13 application was clearly bound to be successful. The Coroner was ordered to pay all the applicant’s costs from service of the claim.
In another much discussed case this year of Maughan (concerning the lawfulness of the Coroner’s directions on the standard of proof for suicide) the Coroner advanced reasons why the guidance on which his directions had been based was “arguably correct”, yet was said to have maintained a “neutral stance” – perhaps hoping to avoid the potential adverse cost consequences of losing the claim (although the outcome was a score draw and the judgment does not suggest that any application for costs was made either way).
The defendant Coroner in the recent Poppi Worthington case, through his counsel, sought to maintain that he too was taking a “neutral stance”. The three judge Divisional Court (which included the Chief Coroner) disagreed, observing that the Coroner had, in practice, sought to persuade the Court that the claim should be refused.
“Both parties clearly sought to persuade us, to the best of their considerable ability, that their submissions should be preferred.”
The Court noted that, despite the Coroner’s asserted ‘neutrality’, had the claim been successful, the Claimant would have been entitled to his costs against the Coroner.
As it happened, the Claimant’s application in Worthington (deservedly) failed so, applying the usual rule under CPR r. 44.2(2), the Coroner was entitled to his own costs – which the Court was eager to award – despite this being a hollow victory against a publicly funded Claimant without the means to pay.
However, the Court was keen to stress that Coroners should not say one thing and do another, stating that:
“We do not condone any practice of Coroners … insofar as it exists, of stating that they are taking a neutral stance … but then making submissions that are clearly not neutral but partisan”.
The Divisional Court has sent out a strong message that there should be no sleight of hand. When determining liability for costs it will consider what stance the Coroner has actually taken and not what she says she has taken. Mere reference to Davies will not suffice to avoid the adverse consequences of “being less than neutral”.
 The Court of Appeal in R (Davies) v Birmingham Deputy Coroner  Inquest Law Reports 96, having determined that a coroner who does not actively resist an application for judicial review will have costs awarded against them only if there has been a “flagrant instance of improper behaviour” or the Coroner has unreasonably refused to sign a consent order (Per Brooke LJ at [46-8])