In the Matter of Downey (Determination Of Costs) [2022] NIQB 2 (here)
Where a Coroner as defendant in judicial review proceedings merely provides assistance and information to the court, rather than contesting the proceedings, that Coroner will not generally be liable for the successful Claimant’s costs.[1] The usual rule of ‘costs following the event’ will generally only apply where there has been active resistance of a Judicial Review claim by a Coroner who risks costs being awarded against them if they lose, whereas a successful defence of an application may result in costs being awarded in favour of the Coroner.
However, Mr Justice Rooney in the Northern Irish High Court has issued a stark reminder to Coroners that costs will not always follow the event. Even where a Coroner wins a contested Judicial Review claim they may not be awarded their costs if their own conduct has not been up to scratch.
This case centred around a recusal application made after the Coroner appeared to have expressed a predetermined view on the engagement of Article 2 in a letter to the Legal Services Agency. The Claimant had significant concerns that the Coroner had pre-judged the issue against her and so should recuse himself. After much deliberation, Rooney J gave the Coroner the benefit of the doubt and dismissed the claim (see our earlier blog here).
Perhaps the Coroner should have taken the hint and left well alone when the judge ended his judgment by saying: “This has not been a straightforward decision. From my initial appraisal of the documentation, I admit to having significant concerns that the respondent had predetermined the issue and should have recused himself.” However, the Coroner thought his costs of the action should be paid by the bereaved mother. The judge did not agree but rather laid out the history of the coroner’s shortcomings.
The recusal application was first heard at a PIRH on 19 February 2021. The Coroner had promised to provide written reasons for his decision, yet by 16 April, when the Judicial Review pre-action protocol (‘PAP’) letter arrived on his desk, the Coroner still had not handed down any written reasons.
Written reasons were produced by the Coroner within a week, but the Coroner failed to provide any formal response to the PAP letter within the twenty-one days the protocol required (or indeed at all). No extension of time was requested by the Coroner, rather he responded with silence.
The threatened Judicial Review application was duly issued, and permission was given, yet there still was no response from the Coroner. On 26 May 2021 the court ordered that the Coroner should file an affidavit by 6 August 2021. The Coroner did not comply. Instead, five days after that court deadline, an unsworn affidavit was sent to the Claimant. The sworn version was not filed with the court until 17 September 2021, some six weeks late. That version was accompanied by an exhibit that had not been appended to the draft version sent to the Claimant.
The Coroner’s counsel bravely asserted that the Coroner’s failure to comply with the PAP did not result in any prejudice to the Claimant. However, this was not an argument that impressed the court in the slightest. As Rooney J pointed out: the Claimant was not provided with any form of response to her pre-action correspondence at all and the Coroner had not complied with a court order.
Furthermore, the central issue in the case, namely the appearance of bias on the part of the Coroner had been legitimately raised by the Claimant. The Coroner himself, albeit after a prolonged period of time, had acknowledged in his affidavit that his response to the Legal Services Agency could reasonably and justifiably lead to an interpretation that he was guilty of predetermination. Although he had, in the end, persuaded the court that this was not the case, it had been the Coroner’s own conduct that had brought about the litigation.
The award of costs was at the discretion of the court and regard would be paid to all the circumstances. These included: the conduct of the parties before and during the proceedings; the extent to which the parties followed the pre-action protocol; and whether it was reasonable for a party to raise, pursue, or contest a particular issue.
The judge could not ignore the Coroner’s failure to comply with both the Practice Direction and an order of the court. These multiple failures on the part of a public authority in public law proceedings were a matter of serious concern. They had obvious relevance to how the court should exercise its discretion regarding costs. The Coroner was sent away empty handed.
References
[1] See R (Davies) v HM Deputy Coroner for Birmingham (Costs) [2004] 1 WLR 2739, [2004] Inquest LR 96, §47(iii)