The evidence obtained from Inquest proceedings is often absolutely crucial in progressing Fatal Accident/Law Reform Act claims, and the ability to attend to provide some form of representation at an inquest without it coming at substantial personal expense can also provide great comfort to the family of the deceased. These costs have always been recoverable within the costs of subsequent civil actions. However, in recent years, and especially post the changes to the proportionality test in 2013, Inquest Costs have become an increasingly disputed issue in Detailed Assessments.

Inquest Costs are an area which often provide the most significant disputes in negotiations in Detailed Assessment proceedings because the levels of costs incurred can often make it a single issue, the outcome of which will determine if a Bill of Costs assessed above or below the level of a Defendant’s offer. It is therefore of great importance that practitioners are alive to the costs issues when they make the decision to provide representation at an inquest, to ensure that costs are not incurred at a level which will not be recoverable in subsequent costs proceedings.

The entitlement to recover costs of inquest proceedings within civil claims flowing from the negligence which gave rise to the death of the Claimant stems from the ability to recover (subject to rules of the Court) all costs “of and incidental” to proceedings. This combined with the broad recoverability of pre-proceedings costs creates a blanket presumption that Inquest Costs are recoverable. The universally accepted test to be applied stems from the case of Re Gibson’s Settlement Trusts [1981] Ch 179, which expands on premise in the primary legislation to essentially say pre-action costs incidental to the proceedings can be recovered subject to 3 tests, that of

  1. Being useful to the action
  2. Being relevant to an issue in the action
  3. Being attributable to the Defendant’s conduct

The case which really set the tone for recovery of inquest costs in more modern times was Roach v Home Office [2009] EWHC 312 (QB). In this case the decision of Senior Master Hurst to award only 50% of the Claimant’s costs of attending the inquest was successfully appealed (and the Defendant’s cross-appeal to strike out the inquest costs in their entirety dismissed), and the main reason for this was the Defendant’s failure to admit liability prior to the inquest. The key part of the decision is below

“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 Gibson, 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 likewise to seek to avoid or minimise any potential liability for such costs here by admitting liability prior to the inquest.”

This decision, the first in a higher Court on the issue, also ratified the approach taken in two previous decisions Stewart -v- Medway NHS Trust[2004] EWHC 9013 (Costs) and King -v- Milton Keynes General NHS Trust[2004] EWHC 9007 (Costs). In Stewart Master O’Hare had found that the circumstances of that case had justified a larger role as being appropriate with the Claimant recovering costs not just of a watching brief but of Counsel to make submissions and cross-examine witnesses, and in King Master Gordon-Saker had found also that the costs of participating in Inquest proceedings was recoverable if it was to “obtain evidence for the subsequent proceedings”. He also, however, cautioned that these costs would be subject to the test of reasonableness and proportionality, those tests of course being substantially different in 2004 when he gave that Judgement than they are now!

For a considerable time the binding decision in Roach (albeit being to some extent fact specific) and the 2 prior decisions at Costs Judge level, combined with the more generous Lownds based approach to proportionality pre 2013 made the issue of inquest costs relatively uncontroversial in Detailed Assessments. However, since the advent of the proportionality test in 2013 there have been several further decisions on this matter, and the new proportionality test, combined perhaps with a re-examination of the principles which were always present in Roach and the antecedent cases mentioned above, has meant that the area has become a hot topic again.

The more recent decisions started with Lynch –v- Warwickshire Police (unreported 2014 – but full Judgement readily available), where Master Rowley assessed a Bill including a very high and comprehensive level of inquest costs and made substantial reductions. It’s a long and complex decision with costs incurred being broken down into 7 categories of work, and reductions were mainly on the grounds of proportionality and were all fact specific. However, some general principles can be extracted, including that the following areas of work are unlikely to be recoverable on application of the Gibson criteria

  • Attending pre-inquest reviews and other procedural inquest hearings
  • Attending Coroner’s summing up to Jury
  • Attending to hear witness statements being read into the inquest.

There was then the decision of Master Gordon-Saker in Powell -v- Chief Constable of West Midlands which queries if work done in securing a particular verdict can be recoverable since the inquest costs are an evidence gathering exercise and there appears limited relevance in a civil claim to the securing of a particular verdict.

Master Leonard’s decision in Douglas v Ministry of Justice & Anor [2018] EWHC B2 (Costs) provides an excellent summary of the principles and case law, and restates and brings again to the forefront the general principle that inquest costs are unlikely to be recoverable where there is an admission of Liability, and inquest costs need to be limited to investigating the issues of liability which are in dispute.

We then have the decision in Fullick & Ors v The Commissioner of Police for the Metropolis [2019] EWHC 1941 (QB). This is an important decision as it is on appeal in the High Court and so binding. The case appears on first blush very supportive to recoverability of inquest costs, even in the more stringent post 2013 proportionality regime. However, it has to be noted this was a very serious and tragic case which involved institutional failings by the police and had a potential effect on future police procedure and so was of personal and public importance bringing the wider factors in judging proportionality at 44.3(5)(e) into play. What this case does set up is a useful 3 stage test for assessing recoverability of Inquest Costs

  1. The relevance of the matters in the inquest to the issues raised in the civil claim
  2. Whether the inquest costs are proportionate to the issues in dispute in the civil claim
  3. The overall amount of inquest costs claimed

The test at 2 and 3 effectively restate and bring to bear on the inquest costs as a discrete entity within the overall costs claim the 2 stage post 2013 proportionality test. In practice this means that a general reduction can be made to the level of inquest costs sought in a Bill if they are too high in amount even where it is held that that it was a reasonable and proportionate step to attend the inquest with reference to the issues in dispute in the civil action and the evidence which could be obtained.

The 2 stage proportionality test as outlined in Fullick, combined with some of the more granular detail in Lynch regarding the instruction of Leading and/or Junior Counsel in dealing with certain issues means that practitioners need to be very careful when considering the seniority and level of fees quoted of any Counsel they instruct to attend an inquest on behalf of Claimant in civil proceedings.

In brief summary therefore the key steps to take now when considering what representation to provide at an inquest may best be identified as below

  • Ensure the level of representation is appropriate to the issues in dispute in proceedings (where liability admitted any representation is unlikely to be recovered).
  • Full representation by Counsel to cross-examine witnesses or make submissions is only going to be appropriate where it elicits evidence of use to the disputed issues in civil proceedings which would not otherwise come out, otherwise a watching brief only.
  • Representation solely to influence the outcome is unlikely to be recoverable absent a compelling case specific reason.
  • Attendance even as watching brief only at procedural hearings, Coroner’s summing up, verdict etc is unlikely to recoverable
  • Think very carefully about the Grade of Fee earner you send to attend, the seniority of Counsel and their proposed fees. The overall amount of costs you incur in total across all representation at the inquest will be assessed as to their proportionality both in terms of the nature of the attendance and secondly solely with reference to the amount of costs actually incurred.

I would also recommend that where issues on liability/causation etc remain in dispute which you feel necessitate incurring costs in attending or sending representation to an inquest that you canvas this within inter partes correspondence, making clear to your opponent that whilst these issues remain live you will be incurring these costs. This gives them an opportunity to make appropriate admissions, and gives you something to rely on in subsequent Detailed Assessment proceedings when their instructed cost representatives seek to challenge the fees incurred.


Paul Kay

Senior Costs Draftsman

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