Mike Hill, Barrister
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Costs of an Inquest

I have had several requests recently regarding representation at an inquest where a civil claim is later anticipated.

There has of course been concern from the family of the deceased regarding the costs of that representation and the solicitor’s costs leading up to instruction of counsel. Some of the cases have involved public access instruction and those who may wish to instruct counsel have been particularly unsure as to the position.

The matter was dealt with relatively comprehensively by Mr. Justice Davis in 2009 in the High Court case of Roach & Ors v Home Office [2009] EWHC 312 (QB) on appeal from the Supreme Court Costs Office. Mr. Roach was a heroin addict arrested for shoplifting in January 2004. Within 48 hours of his arrest he had hanged himself in his prison cell. The inquest lasted 14 days.

Mr. Roach’s parents sued the Home Office in 2007 and an offer of £10,000 was accepted fairly shortly. The civil proceedings were conducted under a Conditional Fee Agreement. The costs came to some £67,000 including success fees. 90% of the costs related to counsel and solicitor attendance at the inquest and pre-inquest hearings.

The senior costs judge gave permission to appeal on the sole point of whether the inquest costs could be recovered in the civil claim. He had decided that there were two equal purposes in the attendance of the lawyers for the parents at the inquest. One was to assist the coroner and the other was to gather information relevant to the civil proceedings. He judged them of equal value and awarded half of the costs of attending the inquest on that basis.

It was agreed between the parties that there was no jurisdiction for the coroner to make an award of costs in the inquest proceedings: section 51 of the Supreme Court Act 1981 as amended.

Mr. Justice Davis considered that costs of an inquest were costs that were incidental to the civil proceedings and therefore recoverable at the discretion of the civil courts under section 51. He considered that the principles laid down in re Gibson’s Settlement Trusts [1981] 1Ch.179 applied. The principles were that pre-issue costs are recoverable if the work done:

  • Proved of use in the civil action
  • Was relevant to an issue and
  • Was attributable to the paying party’s conduct

He did not see that the purpose of the attendance at the inquest was the correct mechanism to determine apportionment of the costs. He found that the attendance at the inquest had shortened the civil litigation because of the evidence collated.

He rejected the argument that Parliament had intended the costs of the inquest to be irrecoverable by way of section 51. He noted that costs “incidental to” civil proceedings could be recovered and that section 51 did not prevent courts from making such orders but prevented coroners from doing so.

The Roach Family appeal was allowed and the matter restored to the senior costs judge simply to determine the matters of reasonableness of costs incurred and proportionality as in any other costs assessment.

The answer then, to the inquiries that I have been receiving as to the recoverability of the costs of the inquest is that, as long as the costs are reasonably incurred and proportionate then they are recoverable in the usual way. There is no reason why a CFA may not be entered into by either solicitor or counsel prior to an inquest.

8 October 2011

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