R (O’Brien) v HM Assistant Coroner for Sefton, Knowsley and St Helens [2026] EWCA Civ 605 (19 May 2026) Costs judgment here.
As readers of this blog should already know ‘neutral means neutral’ if you are a Coroner responding to a Judicial Review claim (and if you didn’t know that, see our 2018 blog following the High Court decision in Worthington: here). Of course in that case the Coroner had ‘succeeded’ in defending the claim, so any judicial comment regarding the payment of costs (even though made by a three judge Divisional Court which included the Chief Coroner) was pure obiter. Nevertheless the entire Bench had been quite keen to stress that it is really not a very good look for a Coroner to say one thing yet do another.
The Divisional Court in Worthington had sent out a strong message to Coroners that there should be no sleight of hand, saying 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”. What was made clear in Worthington was that when determining liability for costs what is relevant is the stance the Coroner has actually taken and not the stance the Coroner says they have taken.
If any Coroner might have since thought the High Court didn’t really mean it, then Lord Justice Edis in the Court of Appeal has just taken up a VERY LARGE PINK highlighter to put the matter beyond doubt.
Background
This costs decision came at the end of the O’Brien case. (You can read all about the substance of that case in our blog post earlier this month, here). If you are not already up to speed on what it was all about then, in very brief summary, when his decision on the scope of an inquest was challenged for being premature and irrational the Defendant Coroner ‘won’ in the High Court but ‘lost’ in the Court of Appeal. The Claimant unsurprisingly sought the costs of both actions against the Coroner.
For the Coroner it was argued that costs should not be awarded against him as he had merely been a neutral party in the case, and so should be granted the costs protection that the Court of Appeal had said a neutral coroner should benefit from in Davies (No.2).[1] In the Davies case the Court of Appeal had held that a neutral judicial tribunal (such as a coroner) who does not enter the fray and has not acted flagrantly improperly, should not be penalised with costs if a Claimant’s action against them succeeds.
That principle is a good one: it protects those in judicial office who may make an unfortunate misstep when making any judicial decision that is not susceptible to remedy by an appeal.
Any criminal or civil judge who is appealed will take no part in the subsequent appeal proceedings, they will never be a party or named as a defendant nor will they be at any costs risk if the appeal succeeds. However Coroners have no such luxury. Coronial decisions can only be challenged by Judicial Review or by a s.13 Coroners Act claim, in both sets of proceedings the Coroner will inevitably be cast as the Defendant to the claim.
When it came to the costs arguments in O’Brien Lord Justice Edis was not very impressed when the Coroner sought to argue that he had been neutral throughout the proceedings:
- Didn’t the Coroners Pre-action Protocol letter assert that “there is no error of law/inadequacy of reasoning demonstrated. On the contrary, the Assistant Coroner was wholly entitled to reach the conclusions he did for the reasons he did”?
- Hadn’t the Coroner served summary grounds for contesting the claim saying “that the decisions he reached were correct in law”?
- Hadn’t the Coroner stated in his High Court skeleton that there was no error of law and he was entitled to come to the decision he had?
- Hadn’t he told the Court of Appeal that the Claimant’s case was “without merit”, “unfair” and “entirely speculative”?
I don’t know what you think, but Lord Justice Edis thought that all sounded pretty much like arguing a case. The Coroner had mounted a defence of his decision in same way as would a litigant seeking to uphold it. The numerous claims of neutrality sprinkled through other parts of his submissions were just not made out when looking at the entire content of the submissions put forward on the Coroner’s behalf.
Costs usually follow the event, and so the Coroner, as the losing party, would be ordered to pay the Claimant’s costs.
Commentary
A Coroner who is truly neutral need not fear this decision. Davies No.2 is still good law. The Coroner was ordered to pay costs precisely because, on the faithful application of Davies No 2, the Coroner had entered the fray and so lost the costs protection he would otherwise have had.
This decision does not mean coroners should avoid taking an active part in a Judicial Review of s.13 claim. There are many ways that a Coroner may still take part in a claim and help the Court arrive at the correct decision by ensuring that the full facts and the relevant law are placed before the Bench.
Indeed Lord Sales in the Supreme Court in R(Maguire) v HM Senior Coroner for Blackpool and Fylde [2] has urged Coroners to appear as a neutral participant, particularly when no other interested party is contesting the claim, noting that in such cases:
“the onus on counsel for a coroner, whilst remaining neutral, is to act as an amicus curiae (advocate to the court) and assist to ensure that the court is given the full factual picture, including if necessary by drawing the court’s attention to matters not emphasised or omitted by a claimant, as well as alerting it to relevant law and authorities.”
The important consideration if costs protection is to be maintained is that the Coroner, through their counsel, must not stray from merely seeking to assist the Court on relevant aspects of law and procedure and slip into arguing the correctness of the decision under challenge.
The moment a Coroner seeks to persuade the Court that their submissions on the merits of a claim should be preferred they become an active party in the action and put themselves at risk of costs if they ‘lose’. The Court will consider whether the coroner has at any stage crossed the line from merely seeking to assist the court to arguing the correctness of the challenged decision. Is the Coroner merely giving information to the court or are they arguing that their submissions should be preferred. This is often not an easy line to walk, and the instruction of an advocate who is familiar with representing Coroners in such claims can pay dividends (or more aptly avoid paying them).
Costs against the Chief Constable as an interested party
What then about the role of the Chief Constable of Merseyside police in all this? They were only an interested party and not a Defendant, but CPR r.44.(1)(a) gives discretion that put the police within the scope of a costs award such that in the court below the Claimant had been ordered to pay the Chief Constable’s costs after he had also ‘successfully’ opposed the application by supporting the Coroner’s decision. You may well feel that the Chief Constable was unlikely to escape now the decision below had been reversed.
Moreover, As the Court of Appeal found in the main judgment, one of the core reasons the Coroner had been wrong in coming to his view that causation was speculative was that the criminal justice process is not random.
The question of what would have happened had the alleged perpetrator, Mr McMahon, been arrested before Ms O’Brien’s defenestration should have been informed by the likely view the decision-makers, (i.e. the police, the CPS and the criminal court) would have taken if made aware of the domestic abuse context of the alleged offence in the full knowledge of the perpetrator’s criminal history.
Had the Coroner obtained McMahon’s antecedents the Court of Appeal considered that it would have rapidly become clear that he would not have been granted bail and that he would have received a substantial custodial sentence on conviction. It was for this reason that the conclusions reached by both the Coroner and the judge below in the absence of knowledge of McMahon’s antecedents were flawed.
The Court of Appeal have now laid the responsibility for that lack of knowledge squarely at the door of the police. The Coroner had accepted the Chief Constable’s submissions on the point and had not been informed of McMahon’s criminal history and what had happened at his court appearances both before and after the death. It seems that the police had not shared information with the Coroner about the nature of the offences for which McMahon was sentenced when they argued, in their own cause, that it was speculative to say what would have happened had McMahon been arrested by police officers some time before Ms O’Brien’s death.
That, said the Court of Appeal, put the police firmly in the frame to also pay the Claimant’s costs. The Court did not bother to grapple with which was the least worst position here. The Coroner and the police were ordered to each pay 50% of the Claimant’s entire costs of the action.
[1] See R (Davies) (No 2) v HM Coroner for Birmingham [2004] EWCA Civ 207, [2004] 1 WLR 2739 at §47
[2] [2023] UKSC 20 §117