It is well-known that, in principle, the costs of an inquest are recoverable in a subsequent clinical negligence claim. The leading case in this regard, also well-known, is Roach v Home Office [2010] QB 256.

Every case, though, will turn on its own facts (there had been no pre-inquest admission of liability in Roach, for example). Moreover, in the decade since Roach was decided the costs landscape has changed – most notably, in this context, by the introduction of the ‘new’ proportionality test in March 2013 – and the court’s approach to ‘inquest costs’ has developed.

This blog considers the development of the court’s approach and attempts to delineate the various arguments open to those on both sides of the litigation fence.

First Principles

The starting point is section 51(1) of the Senior Courts Act 1981 (as amended), which provides as follows (emphasis added):

“(1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in – (a) the civil division of the Court of Appeal; (b) the High Court; (ba) the family court; and (c) the county court, shall be in the discretion of the court.”

The key phrase, emboldened above, is “of and incidental to”: section 51(1) affords the court a broad discretion.

What test, then, does the court generally apply in determining whether costs incurred before the relevant proceedings are recoverable? The answer lies in Sir Robert Megarry V-C’s oft-cited judgment in In re Gibson’s Settlement Trusts [1981] Ch 179, 186H. Sir Robert identified “three strands of reasoning, that of proving of use and service in the action, that of relevance to an issue, and that of attributability to the defendants’ conduct” (emphasis added).

The Decision in Roach

In Roach, the Claimants were the parents of a man who had committed suicide in prison. They instructed solicitors and counsel to attend the inquest into his death and subsequently brought a claim against the Home Office for damages in negligence and under the Human Rights Act 1998. Master Hurst held (i) that held that the costs of attending an inquest could be recoverable as costs “of and incidental to” subsequent proceedings; and (ii) that the role of the Claimants’ legal representatives at the inquest had fallen into two equal parts viz. assisting the coroner and obtaining the evidence necessary to pursue the civil claim. He accordingly awarded the Claimants one half of their inquest costs. The Claimants appealed against the decision to award only half of the inquest costs and the Home Office cross-appealed on the ground that the court had no jurisdiction to award any of the costs.

The appeal was heard by Davis J together with an appeal in Matthews v Home Office, whereby the Home Office appealed against the decision of Deputy Master Rowley that the costs of attending the inquest in that case were recoverable.

Having considered the authorities, Davis J held as follows at [48] (emphasis added):

“Costs of attendance at an inquest are not incapable of being recoverable as costs incidental to subsequent civil proceedings. Nor does this give rise to any unprincipled approach because the relevant principles, as conveniently set out in In re Gibson’s Settlement Trusts [1981] Ch 179, are available to be applied by costs judges in a way appropriate to the circumstances of each case. … it was open in the instant case to the Home Office … to seek to avoid or minimise any potential liability for such costs here by admitting liability prior to the inquest. … the inquests here in practice seem to have had the effect of causing the civil proceedings thereafter relatively speedily (and thereby in a way saving of some costs) to be compromised.”

At [52], Davis J emphasised the fact-sensitive nature of decisions in this context:

“[It] remains a matter for the costs judge’s evaluation and assessment to decide what amount of costs (if any) are allowable as costs of and incidental to the civil proceedings.“

Finally, at [60] Davis J said this:

“There may well be cases … where the costs of antecedent proceedings claimed as incidental costs are so large by reference to the amount of damages at stake and/or the direct costs of the subsequent civil proceedings, if taken entirely on their own, that a costs judge will wish to consider very carefully the issue of proportionality.” 

On the facts of Roach, the Home Office’s cross-appeal (on the question of principle) was dismissed. The Home Office’s appeal in Matthews, again on the question of principle, was similarly dismissed. The Claimants’ appeal in Roach was allowed to the extent that the case was remitted to the costs judge for further consideration.

A Three-Stage Approach

A key recent case is that of Fullick v Commissioner of Police for the Metropolis [2019] Costs LR 1231. This was an Article 2 case where two pre-inquest reviews took place prior to a seven-day inquest. The subsequent civil claim settled pre-issue. On assessment of the Claimant’s costs, Deputy Master Keens held that the pre-inquest reviews “were instrumental in a number of different ways in getting [the Claimant’s] own pathology evidence heard at the inquest, [and] in compelling certain police witnesses to attend” (see [13]). He further held that the inquest “went a lot further than evidence gathering … very largely determining the issues and that is why settlement was capable of being reached without the civil proceedings having really needing to be progressed” (see [15]).

The Defendant’s appeal to the High Court was heard by Slade J. At [46]-[47], her Ladyship held as follows (numbering and emphasis added):

“[The] authorities emphasise the need to [1] identify the issues raised in the civil claim and the relevance of matters in [the inquest] to determine as a first question, whether any of those costs can in principle be claimed in the civil proceedings. Once the threshold of relevance has been passed, the costs judge will [2] decide whether the costs claimed in respect of … the inquest, were proportionate to the matters in issue in the civil proceedings. As for [3] the amount of those costs, those which are disproportionate may be disallowed or reduced even if they were reasonably and necessarily incurred.

“It is trite but important to emphasise that each application for costs in a civil claim and related to an inquest must be determined on its own facts.” 

There are thus, on Slade J’s analysis, three stages to the court’s inquiry: (i) relevance; (ii) proportionality; and (iii) amount. Slade J dealt with stages (i) and (ii) in more detail at [69] (original emphasis):

“The reference by the Deputy Master to consideration of whether costs were proportionate to the issues is, in my view, of central importance to the assessment he was to make. 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.”

On the facts of Fullick, the costs of the inquest – including the costs of attending the two pre-inquest reviews – were found to have been reasonably and proportionately incurred. It was relevant in this connection that the claim was “not just about money”: see [65]. The appeal was, however, allowed to a limited extent in respect of hourly rates.

Strategic Considerations

Although every case will turn on its own facts, in the clinical negligence context the following broad tactical points emerge from a review of the above authorities.

For those representing Claimants: 

  1. Ensure that work done for an inquest is relevant to any contemplated civil proceedings by reference to outstanding issues in those proceedings, and further that participation in the inquest will assist with the civil claim.
  2. Consider whether the costs of participating in the inquest will be proportionate to its utility.

For those representing Defendants:

  1. Consider making pre-inquest admissions of liability and/or offers of settlement.
  2. At detailed assessment, focus on proportionality – under the new test in CPR 44.3(2) costs may be disallowed as disproportionate even where they were necessarily and reasonably incurred.
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