Kate Benn explores the interesting arguments and decision in Briley & Ors v Leicester Partnership NHS Trust & Ors [2023] where detailed consideration as to the importance of a claim is as, if not more, important that the monetary value.

Background of the case

Interestingly, this case was heard 3 years ago during the pandemic, and pre the GHR 2021 rate increases, with Judgment now being made. In very short summary of the facts of the case, it concerned a young woman’s death following mental health difficulties and a subsequent referral to Child and Adolescent Mental Health Services (CAMHS) where she fell under the care of the First Defendant from 2013. The deceased was admitted to various mental health units between 2012 to 2016 and during those periods was diagnosed with Asperger’s Syndrome and emotional unstable personality disorder. In 2014, the deceased was under the care of Early Intervention and Psychosis Services (PIER) due to concerns regarding psychosis and following attempts at taking her life (later thought potentially more as ‘cries for help’). Through PIER, the deceased was admitted to the Bradgate Unit in 2016 and discharged a month later without consultation with her PIER workers. She was re-admitted in May 2016.

The deceased’s mental health deteriorated and following a PIER meet in June 2016 with her psychiatrist, it was determined that the Bradgate ward resources could not provide what the deceased required. Multiple attempts to identify a suitable place were made; sadly, the deceased continued to self-harm during this period so on 16 July 2016, she was placed under Section 5(2) of the Mental Health Act (MHA) and detained under Section 2 (later re-graded to Section 3) on 12 August 2016. During her admission the deceased attempted ligature on three occasions following a reduction in observation levels requiring external hospitalisation.  Serious concerns were raised at this time as to the failure of the investigation.

It took a further 3 months to obtain the necessary funding for a suitable placement for the deceased – resolution was only established once PIER contacted NHS Arden and Greater East Midlands Commissioning Support Unit for a bed. It was only at this stage PIER were informed that nothing had progressed, or was known, about the application; funding was eventually secured on 28 November 2016.

Meanwhile the deceased continued to reside on the Bradgate Unit, with plans made for a one-day home visit on Christmas day. A detailed plan of leave was put together for approval by the MDT. Unfortunately, the plan was not referenced on the handover sheet and observations were not reduced as planned for (equally increased observations were planned for her return given the anticipated ‘come down’ following a one-day visit which were not noted or passed on). It was also not discussed with the deceased’s parents who had concerns about keeping their daughter safe. No record of the handovers or progress notes reflected the plan or anticipated schedule with increased observations required.

The deceased was on general observations on 24 December 2016 but following her return from leave, she was placed on level 3 observations as opposed to level 1 (constant observation). The deceased was found on the morning of 26 December having ligatured with her clothing; she was transferred to the Leicester Royal Infirmary but died on 28 December 2016 having suffered an un-survivable hypoxic brain injury.

The investigation

  • A serious incident investigation was carried out which raised failings as follows;
  • Communication between the ward to the PIER team…and to the family
  • The suitability of the placement at Bradgate Unit;
  • The serious delay in obtaining funding for a specialist placement…; and
  • Safeguarding concerns ….” (para 18)
  • Findings were as follows (paras 19-20);

“The panel conducting the serious incident investigation found that Amanda’s extended stay at the Bradgate Unit was the root cause of the incident, finding both that the environment at the Bradgate Unit was detrimental to Amanda’s well-being and that the length of time taken to identify a suitable placement and uncertainty around the plans caused confusion and anxiety for her. It was considered that Amanda’s complex learning disability needs and challenges presented extreme difficulty for staff to manage alongside other patients in that setting.

In relation to the failure to care for Amanda by level 1 constant observations when she returned from leave on Christmas Day, the panel found that this was an antecedent rather than a root cause. The investigation highlighted that the failure was primarily a system error due to Amanda presenting with a need for an approach for observations that the team at the Bradgate Unit and the systems there in place were not equipped to provide. A serious concern was also raised by West Midlands Ambulance Service as to the CPR that was being conducted upon Amanda immediately upon her being discovered.”

The concerns around the tragic death of the deceased at age 20 led to an Inquest, in addition the deceased’s parents brought a claim against the Defendants for damages, pursuant to the Law Reform (Miscellaneous Provisions) Act 1934, the Fatal Accidents Act 1976 and the common law for negligence and in respect of breaches of the Human Rights Act 1998 (Articles 2, 3, 8 and 14 of the European Convention on Human Rights) and the Equality Act 2010.

The Claim

As part of the initial investigations, a full disclosure request was made from the Coroner by the Claimants’ solicitor, with a pre-inquest review listed. Extensive medical records were also obtained and disclosure from the First Defendant considered. An Application was made, and leave granted, for the Claimants to bring proceedings under Section 3 of the MHA 1983 against the Defendants; the claim was issued on 15 December 2017 (latterly, an extension for service Particulars of claim was agreed by consent to 15 February 2019 given the extensive disclosure documents).

The pre-Inquest review proceeded on 11 December 2017 with confirmation that it would be an Article 2 Inquest and directions were made for a Jury. On-going disclosure and witness evidence was progressed in early 2018 and in March 2018, submissions were made to the Coroner regarding expert evidence, to assist with liability arguments in the civil claim. A further inquest review hearing proceeded on 30 May 2018 (dealing largely with procedural issues).

A Part 36 offer was made on behalf of all Defendants on 25 July 2018 in the sum of £32,500 plus costs, the Defendants did not make any admissions of liability in respect of the allegations at this point – this element of the claim was of considerable importance to the Claimants. The Defendants offer was rejected and they were invited to make liability admissions. The Defendant responded to state that “the lack of any non-pecuniary remedies should not frustrate settlement” (para 32). The Claimants set out their admissions sought on liability on 27 September 2018.

As the inquest approached, disclosure continued resulting in over 7,000 pages being disclosed. This did not conclude disclosure which continued thereafter with detailed reviews of the same.

A further Part 36 was made by the Defendants on 26 October 2018 in the sum of £65,000 plus costs, again no admissions of liability were made. The Claimant reiterated their request for the Defendants response on points of liability on 30 October. In early November, full review of the detailed and vast disclosure from the First Defendant and Coroner was reviewed. On 3 November 2018, the First and Second Defendants admitted liability in respect of all causes of action and a draft letter of apology was provided by the Claimant on 15 November 2018. The Defendant’s Part 36 was accepted on 16 November 2018 (Friday), prior to the inquest commencing on 19 November 2018 (Monday). Letters of apology followed thereafter.

The Cost Points – the Defendant’s position

This hearing concerned preliminary issues as raised in the Defendant’s points of dispute. Usual issues were addressed such as retainer/indemnity principle but Costs Judge James was satisfied there were no issues with the same. Issues of proportionality were raised, but a request made that this point be held over whilst Points 4 and 6 (hourly rates and inquest costs respectively) were considered side by side.

Hourly Rates

  • The predominant rate for work done was charged at Grade A £350 per hour. The Defendants argued the rates as being excessive for the following reasons;
  • It was not ‘objectively reasonable’ to instruct London 3 solicitors when the Claimants resided in Leicester.
  • Reliance on the ‘heavy involvement’ of Counsel which should mitigate the Solicitor’s hourly rate
  • If any enhancement is to be applied, it should only be applied to the Grade A rate.
  • The departure upward from the GHR is ‘unreasonable’ (GHR 2010 at the time).
  • It was accepted that the chosen solicitor firm was recommended by INQUEST (charity), but the Defendant believed that the Claimants ‘would not (he said) have paid close attention to hourly rates given that the matter was funded either by the Legal Aid Agency or by a CFA…’ (para 44). Cots Judge James disagreed given that a contribution towards Legal Aid was required.
  • Comparable case law with rates applied of £350 did not warrant this case as being as complex (JXA by his Mother & Lit Friend VLA) v Kettering General Hospital NHS Foundation Trust [2018] EWHC 1747 (QB))

Inquest Costs

The test for recovery of Inquest costs sits with re Gibson’s Settlement Trusts [1981] Ch 179, 1 All ER 233 –

(a) Of use and service in the claim

(b) Relevant to the matters in issue in the claim and

(c) Attributable to the Defendants’ conduct (all three tests must be passed).

The costs claimed in respect solely of inquest costs amounted to £14,770.67; given that the Inquest hearing ‘proper’ had not proceeded, these were not considered ‘inquest costs’ by the Defendant. The Defendant’s dispute was;

“…the legal costs in this matter spiralled out of all context with the value of the claim, before the Defendants even had an opportunity to address the civil claim facing them; the Claimants’ Solicitors were said to have provided a ‘platinum legal service’ to the Claimants, including what is described as a ‘weighty legal presence’ throughout the Inquest process, whilst incurring an ‘eye-watering’ legal spend without regard to consideration of proportionality, adding that, no doubt if the Inquest costs had been incurred the legal costs would have been significantly higher still.”

The Defendant averred that only the costs “of and incidental to” the civil claim are recoverable. Reliance was made on Roach v The Home Office [2009] EQCH 312 QB; subsequently challenges were made to all time claimed (it was flagged by Master James that this was a ‘cut and copy’ POD given the inquest never actually took place prior to settlement), relating to;

  • Dealing with matters or procedure;
  • Attending pre-Inquest hearings;
  • Assisting the Coroner;
  • Listening to witness statements; and
  • Listening to the verdict;
  • Client care; and (Lynch & Ors. V Chief Constable of Warwickshire Police & Ors [2014])
  • Travel expenses.

The Defendant relied on several cases supporting the recoverability of pre-inquest costs but maintained that “each case must turn on its own facts, with Proportionality being of central importance, along with the relevant (if any) to the civil claim. The question…I must ask myself is, how did the Claimants’ participation in the pre-Inquest reviews help their claims against the Defendants?” (Para 54). The Defendant’s argument turned on whether costs relating to the pre-Inquest work assisted on progressing quantum.

The Defendant’s submissions chronologised the following

(a) In May 2018 extensive medical records were provided by the First Defendant

(b) a letter of apology was sent from the CEO of First Defendant on 20 October 2017 referring to “unacceptable” failings

(c) the First and Second Defendants made full liability admissions prior to the Inquest (15 days prior)

(d) The Defendants engaged in negotiations on 25 July making a Part 36 offer of £32,500, with a later offer of £65,000 on 26 October 2018, accepted on the 16 November 2018

The Defendant proceeded further to outline that the Serious Incident Investigation Report received in May 2017 and a Final Report to the Coroner in June 2017 found that “neglect was likely to have occurred” and it was clear the deceased should never have been on the Bradgate Unit and this was known to the Claimant prior to the first pre-inquest review, furthermore, the Council safeguarding team made findings of neglect (post first pre-Inquest review but before the second). The Defendant concluded that any costs relating to the pre-Inquest hearings should not be borne by the Defendant.

The Claimant’s position

Hourly Rates

Referencing the Defendant’s disputes on hourly rates, the Claimants response summarised was;

  • Location of the Claimant is not determinative but what should be considered is whether the instruction of the chosen solicitor is an “objectively reasonable choice…given all of the circumstances at the time”. The Claimant provided their reasoning for the instruction of Bhatt Murphy supported by the fact that they have a “national reputation” for claims such as these. Kai Surrey v Barnet and Chase Farm Hospitals NHS Trust [2018] EWCA Civ 451. Reliance was also placed on CPR 44.3(3).
  • Counsel did not “take the burden of the case onto his own shoulders”
  • The GHR were not put in place for this type of case and whilst updated, they had not been at the time that this matter was heard (2020); inflation would therefore play a part raising the GHR to £321 upon which enhancement would then need applying

Inquest Costs

The Claimant sought to rely initially on Home Office v Lownds [2002] EWCA Civ 365 to argue that the costs (at £14,770.67) were not disproportionate to secure settlement of £65,000. Furthermore, reference was made to Roach v The Home Office [2009] EWHC 312 (QB), with particular reference made by Costs Judge James to the following comment in the judgment;


“…Mr Westgate in fact was, I think entitled to observe – as he did – that it was open in the instant case to the Home Office likewise to seek to avoid or minimise any potential liability for such costs here by admitting liability prior to the inquest. He and Mr Post were also entitled to observe that 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.” That seems to me to be a – potentially – helpful quote as well if (as I understand the Claimants wished me to do) I found that the Inquests, or rather the pre-Inquest reviews, were instrumental in the swift resolution of this matter.”

The Claimant challenged the reliance of the Defendant on Lynch on the basis that the decision was made at Costs Judge level, and as agreed by Costs Judge James, was therefore unbinding (yet persuasive). Other cases were cited by the Claimant with an understanding between both parties that “the decision must turn upon the facts in the case before [Costs Judge James]”, she went on to add that “the decisions of other Costs Judges on the facts in different cases, do not take the matter much further in my view” (para 83).

The Claimant proceeded to highlight their version of events surrounding work involving the Coroner and pre-inquest reviews. A summary of those issues requiring additional work to support the Civil Claim were as follows;

  • On receipt of instructions, all disclosure was requested from the Coroner along with a request for the Serious Accident Report (received May 2017)
  • In December 2017 the first pre-Inquest review determined it would be an Article 2 Inquest with a Jury – both factors being highly relevant to the civil claim given the level of information the Coroner would require and in turn provide to the Claimant which would assist with the liability claim
  • The Coroner had “expressed concern regarding gaps in the disclosure,… (Counsel for the Claimants) pressed for Witness Statements and interviews, whereas the Defendants were resisting the production of documents…Mills and Reeve were challenging whether causation needed to be included but the Coroner agreed with the Claimants’ submissions…that it would be useful.” (Para 87) The Claimants efforts were to ensure that matters pertinent to the Civil Claim were covered within the scope of the Inquest.
  • The importance of the matter to the parties was highly significant; the loss of a young woman, a daughter, against “serious criticism” of the Defendant with 19 witnesses identified at the pre-Inquest review (46 identified for the Inquest hearing proper).
  • The pre-Inquest reviews prompted further disclosure relevant to the Civil claim in addition to expert evidence being provided. Much of the disclosure was not made by the Defendants until post both pre-Inquest reviews (October 2018).
  • The only attendances at the pre-Inquest reviews for the Claimant was by Counsel and the conducting Fee Earner, an entirely reasonable presence in the Claimants view.
  • There was a lack of understanding by the Defendants as to the type of claim being made, wrongly referenced as a clinical negligence claim
  • The admission referred to the by the Defendant in October 2017, relates only to an admission of a “lack of supervision…from the time she arrived back in the Bradgate Unit on Christmas Day, to the time she was found, grievously injured…”. Whereas the settlement reached, in November 2018, “was in turn accompanied by full admissions of liability in respect of all causes of action, plus a letter of apology, plus a commitment to involve Amanda’s family in training and/or learning lessons from Amanda’s death. Again, these results (which were clearly very important to the Claimants although they did not involve any increase to the damages awarded) were achieved through preparation for the full Inquest and the pre-Inquest reviews.”

The Claimants concluded that it was “essential” to attend and undertake work relating to the pre-inquest reviews to fully ascertain the “precise nature of the Defendants’ breaches of Amanda’s right to life under Article 2 and/or of their duty of care towards her,…”

Judgment

The Defendants’ position ultimately was not whether it was reasonable to incur the costs as the Claimants had done, but whether those costs should be paid by the Defendants. Simply, Costs Judge James said that “yes, they should” (para 111); the following reasons for her decision can be summarised taking the two main preliminary issues in turn; Hourly Rates and Inquest costs.

Hourly Rates

The instruction of Bhatt Murphy by the Claimants was “objectively reasonable” when considering the nature of the claim and potential Hung Rights and Equality Act issues.

The location of the instructed solicitors made little difference to the hourly rates, and the Defendant had not provided sufficient evidence of an alternative and more locally based solicitors experienced to deal with the issues in this case.

The early admission of liability (October 2017) was “in fact very limited, both as to its scope…and as to who was making the admission (not all three Defendants).”. A full admission was only received much later and after both pre-Inquest reviews.

The value and importance of this case was relevant, the latter on behalf of both parties when considering CPR 44.3, as was the complexity of the matter. Costs Judge James said at para 124 “this was very clearly a complex and difficult matter. There were multiple failures across many months (or year), there was a vast amount of documentation and there were numerous causes of action against three Defendants.”

Costs Judge James relied on PLK & Ors (Costs) [2020] EWHC B28 in establishing an appropriate starting point for hourly rates, allowing Grade A at £350 per hour, and £140 as claimed for Grade D (below the £145 outlined in PLK), and £150 for the Costs Consultant given the specialized nature of the work.

Inquest Costs

Fullick & Ors v The Commissioner of Police for the Metropolis [2019] EWHC 1941 (QB) was relied upon by both parties as binding authority on the fact that the costs of attending an Inquest are “potentially recoverable…but that the Court has to be careful to ensure that the costs allowed are those that are reasonable necessary (and proportionate) in the pursuit of the civil claim…” (para 130). Costs Judge James went onto to reference Fullick;

133. …Mrs Justice Slade, after duly considering the competing arguments, found that Deputy Master Keens, “did not err in his conclusion that the costs attendance at the Inquest hearing were reasonably and proportionately incurred. The cause of death and recommendations for changes in police procedure were relevant to the civil claim. The claim was for damages for breaches of Article 2 of the European Convention on Human Rights in relation to the death of Ms Jones at a police station. Evidence on the cause of death and actions and procedures of the police given in the Inquest and the verdict reached are relevant to those issues. Consideration should be given to whether all or only some of the steps in the Inquest proceedings are relevant to the civil claim. If they are, whether the costs incurred in participation by the Claimant in each of those steps is proportionate and reasonable. If some of those steps are agreed, such as the giving of certain evidence, it is unlikely to be proportionate or reasonable for a receiving party to attend a pre-hearing review to deal with agreed matters.”

134. If one substitutes, ‘Amanda’ for ‘Ms. Jones’, ‘following a ligature on the Bradgate Unit’ for ‘at a Police Station’ and ‘the Defendants’ for ‘the Police’ the above quote could apply to this case; notably of course this case dealt with pre-Inquest reviews rather than an Inquest ‘proper’ but equally notably, there was not much in the way of ‘agreed matters’ as far as I have seen…

It was determined that what was likely more important to the Claimants than money damages, was establishing what happened to the deceased and working to prevent anything similar happening in the future; supported by the Claimants requiring a full apology and liability admissions before accepting the financial offer put forward.

Costs Judge James’ overall finding outlined;

138. I find that these costs are in principle recoverable. They are relevant to issues in the civil claim so as to be recoverable as costs in that claim, and I have set out above the identification of outstanding issues necessary to the civil claim in respect of which the Claimants’ case would be advanced by participation in the Inquest, and what it was in that participation which would assist with the civil claim. Weighing the value of that assistance against the cost of pursuing that particular point in the Inquest, I also take the view that they are at first blush proportionate.

She continued to outline that if the Defendant wished to challenge the time thereafter in respect of the Inquest costs, they were entitled to do so on a line by line assessment basis; specific comment as to the costs of such an exercise were made with the position reiterated that the costs in questions were, “broadly speaking, recoverable on the facts in this case”, with consideration that the costs in question were not, in her view, “’eye-watering’ at all”.

Comments

This case raises two interesting points which are continually argued within the courts, the level of hourly rates sought in complex matters and the recovery of inquest costs. Whilst comments were made that the Defendants were entitled to make their robust defence, their actions in delaying disclosure and not making full and early liability admissions sought to minimise the importance of the case to the Claimants’. It is pleasing to see that where the Defendant did not consider liability admissions as relevant to settlement, Costs Judge James placed, arguably, the most relevance on the importance to the parties in her assessment of the hourly rates.

Inquest costs remain recoverable, where reasonable and proportionate to not just value, but the facts to a claim also. The Bill must support and outline why any work relating to an Inquest were incurred and it is paramount that you instruct a specialist costs expert to draft the bill of costs with a full understanding of the complex issues surrounding Inquest costs. This was enough of a factor to warrant the costs ‘complex’ with an enhanced hourly rate applied for preparation of the costs.

If the Defendant does not want to pay for the costs of work relating to an Inquest, the ball is in their court in terms of making early, and full, admissions of liability. Not all Claimants are seeking monetary compensation, especially when the importance of the potential allegations mean far more than money, as in this case.

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