In the closing chapter of a case that has attracted wide media comment, the Divisional Court has now considered whether costs should be awarded against the North London Coroner, whose ‘cab rank’ policy for addressing the administration of deaths in her area, challenged by religious groups who considered that it amounted to indirect discrimination, was quashed in April.
In the substantive case, discussed here, the court held the Senior Coroner’s policy to be irrational and unlawful. She had wrongly fettered her discretion to expedite deaths where there was a particular need or religious imperative to do so.
The remaining question, therefore, concerned costs. In particular, whether the court should follow the general rule in CPR 44.2(2)(a) that in civil actions, including applications for judicial review, the unsuccessful party be ordered to pay the costs of the successful party, notwithstanding that the Defendant was a judicial officer.
As the Court of Appeal has previously made clear in Davies[1], although the award of costs is discretionary, the fact that a coroner loses a case as a Defendant is an insufficient basis, in and of itself, on which to make an adverse costs order against him or her.
The fact that a coroner loses a case is an insufficient basis, in and of itself, on which to make an adverse costs order against him or her.
The usual position when seeking costs against an inferior court or tribunal, including a coroner, is that if the Coroner:
- Does not appear, no order for costs will be made unless there has been a “flagrant instance of improper behaviour” or unreasonable refusal to sign a consent order;
- Appears and actively resists the application, so as to become an active party to the litigation, then costs will follow the event;
- Merely assists the court neutrally on questions of jurisdiction, procedure, specialist case law and such like, then, as a neutral party, no order for costs against the coroner will be made, whatever the outcome of the application.
The Claimants submitted (somewhat unrealistically) that the present case was distinguishable from Davies because the Senior Coroner was making her policy in an administrative rather than a judicial capacity. It was said that she should not be put in a preferential position compared to other public authorities which would have no immunity for costs if they defended a policy which subsequently was found to be unlawful.
The Divisional Court did not agree. The policy formulated by the Senior Coroner was judicial in its nature. By that policy, she had directed herself and her staff about the order in which decisions would be taken about deaths, including decisions about whether and when to release the body. Such decisions were plainly judicial in nature. The principles in Davies, therefore, fell to be applied.
Turning to the Davies principles, the Claimants accepted that the case did not show a “flagrant instance of improper behaviour” by the Coroner but they did argue that it was unreasonable of her to maintain her policy in light of the Chief Coroner’s intervention. Specifically, she did not reconsider her own position once the Chief Coroner indicated that his position (as set out in his in his Detailed Grounds and Response) was that her policy was unlawful.
The Claimants also relied upon the second limb of Davies, arguing that the Coroner had not been neutral in her stance but had actively sought to defend her policy as lawful.
The Divisional Court noted that the “acid test” in Davies was whether the Defendant at any stage crossed the line from merely seeking to assist the court on relevant aspects of law and procedure into arguing the correctness of the decision under challenge.
This is an important consideration, as one can see in the exchange between counsel and Wilson J (as he then was) in Plymouth City Council v HM Coroner for Devon [2005] EWHC 1014 (Admin).
Counsel for the Coroner, who was instructed for the purpose of the costs determination, made clear that the Coroner had potentially faced a personal costs liability and that, “The [Coroner’s] skeleton argument did not anywhere say that the correctness of that decision was being assertively supported, rather the Coroner simply said that he would welcome the assistance of the court.” He had, it was submitted, done no more than “set out what the decision was and to draw [the court’s] attention to relevant evidence.”
Wilson J decided to make no order for costs even though he had “difficulty in saying, hand on heart, that [the Coroner] adopted an entirely neutral stance. Nevertheless, his stance was consistently low-key, constructive, helpful and unrepetitive, there was no extravagance in any of part of his submissions. Without his assistance… I do not think that I could satisfactorily have determined the claim for judicial review.”
The point was made again in R (Pounder) v HM Coroner for Durham and Darlington (No 2) [2010] Inquest LR 38, at [37] where Burnett J (as he then was), stated, “the question of costs in such proceedings was reviewed by Brooke LJ in R (Davies) v Birmingham Deputy Coroner (CA) [2004] 1 WLR 2739. The result was that where a coroner appeared neutrally to assist the court, he would not be ordered to pay the costs if the challenge was successful. However, if a coroner actively sought to resist the judicial review application and lost, he was likely to be ordered to pay the costs of the successful party in the same way as other litigants.”
In the instant case, the court considered that the Senior Coroner had crossed the line through the “written advocacy” within her addendum grounds of resistance, which sought to justify her policy in response to the Chief Coroner’s indication that he did not support her policy. In doing this, she was no longer simply giving information to the court but positively advocating for her position.
The Court were clear that they were not finding that the Coroner had been acting unreasonably, there was insufficient information before the Court to take a view. The Senior Coroner had been representing herself and did not have any legal assistance to help her to determine where the line between neutrality and active participation lay. But the Court nevertheless noted that she had maintained her stance and failed to take the opportunity to review her position and the basis upon which she was defending it when the Chief Coroner made his position clear.
Therefore the court ordered that the Senior Coroner pay the Claimants’ reasonable costs from the date on which she had filed her addendum, just under three weeks before the court hearing. From that date onwards the court considered that she had ceased to be neutral, such that fairness required that the costs should not fall on the Claimants’ shoulders. There would be no order for the costs prior to that date, consistent with the principle stated in Davies that a coroner who remained neutral should not ordinarily be liable for costs.
The Court recognised that the Davies principle in and of itself envisaged what some may regard as unfairness because it would leave a successful Claimant having to pay their own costs of a successful action. However, it should also be noted that those who bring an application for judicial review against the decision of a coroner usually benefit from some degree of informal costs protection – in that “neutral” coroners who’s decisions are upheld will rarely seek their own costs against such a Claimant, even where they have themselves incurred the expense of counsel when assisting the court. The more usual position is that coroners will only seek their own costs against an unsuccessful Claimant after a coroner wins a case having adopted an adversarial stance from the outset.
Coronial indemnity for costs
A separate but related issue arose in this case concerning the indemnity provided to the Coroner by the Local Authority. Under the earlier provisions in s27A of the Coroners Act 1988 the ‘relevant council’ was required to indemnify a coroner for any damages awarded against him or costs ordered to be paid in JR proceedings related to her duties as a coroner.
Under the post-2009 Act scheme (specifically in Regulation 17(1)(c) of the Coroner Allowances, Fees and Expenses Regulations 2013) the word ‘costs’ had been omitted from the similar provision. Whilst it seems that this is a mere drafting error, the London Borough of Camden had initially declined to indemnify the Senior Coroner for the adverse costs order. Camden later relented and all parties, and the Chief Coroner agreed that the omission of the word ‘costs’ was a drafting error.
As the Divisional Court made clear, this is a point that plainly needs to be considered and resolved. Coroners must have certainty about the scope and extent of the indemnity to which they are entitled under the legislation.
Footnotes
[1] R (Davies) v Birmingham Deputy Coroner [2004] 1 W.L.R. 2739; [2004] Inquest LR 96
The Senior Coroner was represented by Bridget Dolan QC and Briony Ballard of Serjeants’ Inn Chambers in the costs application.