Inquest costs in personal injury claims
The public perception of personal injury lawyers is often tainted by “compensation culture” stories in the popular press. The two cases of Roach v The Home Office and Matthews v The Home Office highlight the professionalism and empathy often required by claimant and defendant lawyers alike. Two tragic cases of deaths in custody – both cases settled through negotiation by specialists on either side. No-one ever points that out do they? So well done The Treasury Solicitors, Hodge Jones & Allen and Bhatt Murphy Solicitors.
That is incidental to the point of this post – “incidental to” being an important phrase. Personal Injury lawyers have for years been attending Coroner’s Inquests. This has led to the vexed question of who pays the costs of that attendance. The Coroner has no power to award costs of attending an inquest. Can you recover the costs then if you win (as claimant or defendant) a subsequent civil claim arising out of the death?
Mr Justice Davis rejected the Home Office argument that the costs in one set of proceedings (here the inquest) are never recoverable in another set of proceedings (here the compensation claim). Authority to award the costs comes from section 51 of the Supreme Court Act 1981 which says:
(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; and
c) any county court,
shall be in the discretion of the court.
Mr Justice Davis approved the approach taken by Mr Justice Clarke in the The Bowbelle [1997] 2 LL.Rep. 196. That in turn applied the “three strands of reasoning” from re Gibson’ Settlement Trusts [1981] 1 CH.179, namely “that of proving of use and service in the action; that of relevance to an issue; and that of attributability to the [paying parties'] conduct.” Hence in the Bowbelle negligence for the collision withThe Marchioness had been admitted before the inquest. The inquest costs relating to the cause of the accident were not recoverable but cost relating to pre-death suffering and loss of life were.
Tests of reasonableness and proportionality are ever present safeguards available to the paying party. Indeed in the Roach case 90% of the £67,126.85 arose from attendance at the inquest. The matter has to go back to Master Hurst because of the receiving party’s successful cross-appeal on the division of costs so Mr Justice Davis declined to comment on proportionality but read his comments yourself and see if you get any hint of his thinking.
Mr Justice Davis declined the invitation to lay down guidelines for costs judges in future cases saying “It seems to me that the discretionary regime available to Costs Judges in this context, and the application of section 51 and Rule 44, will not be advantaged by further guidelines (so called): each case should properly be decided by reference to its own circumstances. I am fortified in this view by the suggestion, as to which I express no opinion, that what is decided in these cases (which relate solely to inquests preceding a subsequent resolution of civil proceedings) may also be relevant in other contexts: for example, attendance prior to civil proceedings at a criminal trial involving death by dangerous driving or a criminal trial involving Health and Safety issues. Better, I think, to leave it to Costs Judges to decide each case on its own facts by reference to section 51 and the subordinate statutory rules and having regard to the principles indicated in Gibson.”
If you would like to receive new posts from the Personal Injury Mediation Service direct to your in box click
here and enter your email address. You can cancel the service any time.
To comment on the author’s note regarding the public opinions….It is an unfortunate truth that the vast majority of the public views most personal injury attorneys as money-seeking manipulators of justice.
In the United States wouldn’t this issue fall within the lines of a wrongful death case? Thanks.