Fullick v The Commissioner of Police of the Metropolis [2019] EWHC 1941 (QB)
The funding of representation for the bereaved at inquests is not just an un-level playing field, but a total quagmire often more akin to the aftermath of an outing of the 1988 Pontypool front row on a rainy day in December. The costs of representation at an inquest will only be met from public funds in cases deemed to be ‘exceptional’ (where, as a minimum, Art 2 is engaged or where it can be shown that the provision of advocacy for the bereaved family at the inquest is likely to produce significant benefits for a wider class of people). Calls for non-means tested funding for the bereaved, even though supported by the Chief Coroner[1], have been rejected[2] [3]. Even the families of those killed in the London Bridge attack were told it was not in the public interest for them to receive state funding at the inquests[4].
Against that background, it is unsurprising that there is a growing body of case law regarding the recovery of the bereaved’s inquest costs as part of the costs of a subsequent successful civil claim. The amounts at stake can be very large even though the civil claim will often settle pre-action following pejorative inquest findings.
Some of the principles in play are now helpfully set out in the recent case of Fullick – an appeal of a Deputy Master’s order that the Met Police should pay costs of over £88,000 following the pre-action settlement of a claim for damages for breach of Art 2, negligence and misfeasance in public office in a death involving the police.
The decision is worth a read for its consideration of the purpose and function of an inquest, as well as its setting out of the principles underpinning the recoverability of inquest costs.
Background
Ms Jones was a vulnerable homeless woman who had attended a police station voluntarily as a witness. When she appeared to go to sleep in the interview room she was not roused; when later checked she was not breathing. She died in hospital eight days later.
Her relatives instructed lawyers to represent them at her inquest[5]. Two pre-inquest review hearings (‘PIRHs’) were held and a seven-day inquest took place. The inquest jury’s narrative conclusion found that the death had resulted from methadone and alcohol intoxication coupled with inadequate police policies, procedures and training. A few months after the inquest, and prior to formally bringing proceedings, the parties settled the proposed civil claim for £18,798.
The first instance costs decision
At the detailed assessment of costs, a bill of costs for £122,000 was presented. This included costs related to attending the two PIRHs and the inquest itself, and around £36,000 for documents work in preparation for the civil claim.
At first instance, the Met Commissioner accepted that the costs of attending the inquest were recoverable but challenged the amount claimed, as well as the claim for costs of the PIRHs, on the basis that in this post-Jackson era they were disproportionate: attendance at the PIRHs was not for the purpose of gathering evidence for the civil claim (which would be recoverable) but for assisting the coroner so, it was argued, those costs were not recoverable.
The Deputy Master disagreed. He held that:
- The PIRHs ‘were instrumental in a number of different ways in getting [the Claimants’] own pathology evidence heard at the inquest, in compelling certain police witnesses to attend’ [§13];
- The inquest ‘went a lot further than evidence gathering’ and determined the issues to such an extent that ‘settlement was capable of being reached without the civil proceedings having really needing to be progressed’ [§15].
“An inquest is not a ‘passive’ procedure”
As the Deputy Master put it, an inquest is not a ‘passive’ procedure where you ‘just go along and just wait to see what comes out’ and it was ‘artificial‘ to say that the work and preparation undertaken for the inquest was somehow not part of the civil claim. The PIRH costs were therefore deemed recoverable.
The appeal
The Commissioner appealed on two grounds, in essence that the Deputy Master:
- was wrong in law to conclude that the awarded costs of £88,356.22 were proportionate. In particular, he failed to apply CPR 44.3 correctly in treating the costs of the inquest as though it represented the civil trial, and failed in any event to reduce the total costs awarded even if they were necessarily incurred;
- wrongly accepted the Claimants’ arguments that ‘the general costs of the inquest’ were recoverable as costs of the civil action. It was an error to treat the inquest as though it was a trial of the civil claim, and the inquest costs were not costs ‘of and incidental to’ the claim.
The Commissioner submitted that she should only have to pay the Claimants’ costs of the attendance at the inquest ‘which were for evidence gathering for the civil claim and which were reasonable and proportionate’ [§28]. This category of costs did not include the attendance at the PIRHs, the preparation for the inquest, the time spent on documents and conferences with counsel. The Commissioner placed great emphasis on proportionality and contrasted the modest settlement sum of just over £18,000 to the costs award of over £80,000.
On the basis of Rule 13 of the Coroners (Inquest) Rules 2013, it was submitted, perhaps boldly, that because interested persons could obtain disclosure of documents held by the Coroner and the recording of any publicly-held inquest, this provided a more cost-effective way of obtaining evidence than attending the inquest and PIRHs [§27]. It appears to have been suggested that this was a reason for concluding that the inquest costs claimed were disproportionate.
The decision
On appeal, Mrs Justice Slade agreed with Commissioner so far as accepting the principle that ‘the functions of an inquest and of a civil claim are different’ [§40]. An inquest seeks out and records as many of the facts concerning the death as the public interest requires, and it is not the coroner’s or jury’s function to (appear to) determine any question of criminal or civil liability. An inquest is inquisitorial, whereas a civil claim is adversarial.
Such observations are uncontroversial; coroners often repeat them to interested persons at the start of inquests.
“The functions of an inquest and of a civil claim are different”
The judge did not, however, accept the Defendant’s core submission that the Deputy Master had erred in awarding the costs relating to the inquest.
Mrs Justice Slade principally relied upon two earlier cases which she considered applicable notwithstanding the subsequent Jackson reforms:
- Re Gibson’s Settlement Trusts [1981] Ch 179: that three strands of reasoning applied in deciding whether costs incurred before the relevant proceedings were recoverable, namely whether those prior costs were ‘of use and service in the action, … relevan[t] to an issue, and … attributab[le] to the defendants’ conduct’ (p 186);
- Roach v Home Office [2009] Inquest Law Reports 45: that the costs of attendance at an inquest are not incapable of being recoverable as costs ‘incidental to subsequent civil proceedings’, and the Gibson principles should be applied in this regard. The factor of ‘relevance’ was highly important.
Mrs Justice Slade essentially set down a three-stage approach for costs judges in considering inquest costs in the context of civil proceedings:
- Relevance: Identify the issues raised in the civil claim and the relevance of matters in the inquest in order to determine ‘whether any of those costs can in principle be claimed in the civil proceedings’ [46];
- Proportionality: If the threshold of relevance is passed, decide whether the costs claimed in respect of the inquest are proportionate to the matters in issue in the civil proceedings;
- The amount: Disproportionate costs may be disallowed or reduced even if they are reasonably and necessarily incurred.
The judge emphasised that a case-by-case approach should be adopted: ‘each application for costs in a civil claim and related to an inquest must be determined on its own facts’ [§47].
As to the Commissioner’s reliance on the claim settling at the pre-action stage, this did not necessarily point to the non-recoverability of costs relating to an inquest which contained issues relevant to a contemplated civil claim [§48]. It is, of course, always open to any potential defendant to admit liability prior to an inquest in order to avoid or minimise any potential liability for such costs (see Roach, [§48]).
The judge acknowledged that the case was not just about money but was important in holding the police to account, in some measure, for the deceased’s death. The settlement gave rise to an agreement to revise policies, protocols and training. Thus, the issues were of a wider public interest [§66].
Moreover, it was right for the Deputy Master to take into account that, once the inquest conclusion had been delivered, the civil claim could be resolved shortly afterwards. That subsequent civil proceedings are speedily compromised as a result of an inquest is not a factor against allowing the costs of the latter [§67].
Emphasising the important principles of relevance and proportionality, she said:
‘The costs incurred by the Claimants in connection with the Inquest must be relevant to issues in the civil claim to be recoverable as costs in that claim. That requires identification of outstanding issues which are necessary to the civil claim in respect of which the Claimants’ case would be advanced by participation in the Inquest. The assessment also required the identification of what it was in that participation which would assist with the civil claim. The value of that assistance would then be weighed against the cost of pursuing that particular point in the Inquest.’ [§69] (original emphasis)
The costs of the inquest, including attending the two PIRHs, were found to be proportionately and reasonably incurred. The only aspect of the appeal that succeeded was that a Grade A fee earner was not required for some of the civil claim documents work which should be costed at Grade D rates. Consequently, the total costs were to be re-assessed. Otherwise, the Commissioner’s appeal was dismissed.
Practice points
Despite the uneven, muddy landscape that can leave bereaved families bogged down in the rucks in their search for funding, Fullick is a reminder that it is possible for the bereaved to win the inquests costs match in the end.
A number of points for practice arise:
- It remains likely that a large proportion of inquest costs will be awarded in subsequent successful civil proceedings.
- In order to satisfy Mrs Justice Slade’s three-stage approach, a prospective claimant (or, rather, her lawyers) should, so far as possible, ensure that the work done for an inquest is relevant to any contemplated civil proceedings.
- In particular, it will be necessary to consider at the outset whether the likely total costs of participating in the inquest will be proportionate to its utility to the civil claim. This will be a difficult assessment to make but it must be done.
- In this regard, it would be helpful at an early stage to have a good grasp of the likely issues that will arise and the extent to which the defendant’s conduct is attributable to the deceased’s death.
- Prospective defendants should, where appropriate, consider making early admissions of liability and offers of settlement if they wish to minimise or avoid potential liability for a claimants’ inquest costs.
- At the detailed assessment, defendants may wish to prepare robust arguments in relation to proportionality, even where the inquest costs are said to be necessarily and reasonably incurred.
It should be noted that the decision in Fullick (as well as those in Gibson and Roach) applies not just to the costs of inquests but also to the costs of other pre-action proceedings (or steps) which may be related to an eventual civil claim. The factors of relevance and proportionality will, again, be key in determining recoverability. See, for example, Powell v Chief Constable of West Midlands Police [2018] Inquest Law Reports 215, where the court found that, in circumstances that fulfil the three strands in Gibson, a claimant could not only recover inquest costs but also the costs of attending Crown Court proceedings related to the death. However, the costs of making a professional complaint (such as the one to the IPCC in Powell) are unlikely to fall within the Gibson strands and are unlikely to be either reasonable or necessary.
Footnotes
[1] The Chief Coroner’s Annual Report 2016-17, para 185 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/663823/chief-coroner-report-2017.PDF.
[2] See our earlier blog post on “De-lawyering Inquests” here.
[3] Review of legal aid for inquests 2019.
[4] https://www.thetimes.co.uk/article/families-of-london-bridge-terror-victims-are-denied-legal-aid-rgstmmzjw and https://www.thejusticegap.com/london-bridge-attacks-inquest-legal-aid-and-the-public-interest/.
[5] For further background to the case see the decision in Fullick v HM Coroner Inner North London [2015] Inquest Law Reports 321, and the successful challenge to the coroner’s decision not to sit with a jury.