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What’s The Deal With Inquest Costs?

Sean Linley, Costs Consultant, PIC, takes a brief look at the recoverability of Inquest Costs.

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There’s no denying that the issue of Inquest Costs and the recoverability of the same is a complex issue. It’s also fair to say that a lawyer looking to recover such costs will inevitably face a battle to do so.

The starting point for the consideration of the recoverability of Inquest Costs can be found in Section 51 of the Supreme Court Act 1981 which provides that costs of and “incidental to” civil proceedings are at the discretion of the Court. Re Gibson’s Settlement Trusts [1981] Ch 179 crystallised the ability to recover Inquest Costs. In this case it was held that pre-action costs were, in principle, ‘incidental’ to the proceedings and consequently covered by the Court’s discretion. A three-strand test was identified and applied by the Court whereby such time had to:

  • prove of use and service in the action
  • bear relevance to an issue
  • be attributable to the [paying parties’] conduct.

Known as the Gibson Test, it has since been applied to various issues as to the recoverability of pre-issue costs. Notably the test was applied in Bowbelle [1997] 2 LL.Rep. 196 (QB) where the Court held that the costs of an inquest are recoverable as costs of a subsequent civil claim, where such costs were reasonably incurred, on the basis that those costs were incidental to the claim.

Stewart & Howard v Medway NHS Trust [2004] 1 Inquest LR 71 (SCCO) followed the principle set out Gibson and Bowbelle. In this case the Defendant argued that the costs of attendance at the Inquest were not recoverable as the order for costs was limited to the costs of, and incidental to, the clinical negligence proceedings and the costs of another action (the Inquest) could be not of, and incidental to, the action. Master O’Hare disagreed stating that the purpose of the party incurring the costs should be examined and not the purpose of the action in which the costs were incurred. Inquest costs could be of, and incidental to other actions.

Following on from this Master Gordon-Saker provided further guidance in Jacqueline King v Milton Keynes General NHS Trust [2004] EWHC 9007 (SCCO). The costs of attending an inquest (and of questioning the witnesses) can be recoverable as costs incurred in the subsequent proceedings if the purpose (or at least material purpose) was to obtain evidence for the subsequent proceedings. The cost of work done, however, to persuade the coroner to reach a particular verdict was not recoverable.

Roach and another v Home Office and Matthews v. Home Office [2009] EWHC 312 (QB) was the next big decision relating to Inquest costs. Unlike the cases above here the Court held that the costs of an attendance at inquest are not incapable of recovery in subsequent proceedings, albeit it should not be expected that receiving parties would recover 100% of their Inquest costs. The Court determined that the costs of the inquest would only be recoverable in the subsequent civil proceedings to the extent that they were incidental to the same. Whilst the Court was asked to give general guidance, it declined, saying that each case should be decided on its own facts by reference to section 51 and the subordinate statutory rules and having regard to the principles indicated in Re Gibson’s Settlement Trusts (1981) 1 All ER 233.

The most often referred to case is that of Amelda Helen Lynch & Ors v Chief Constable of Warwickshire & Ors (2014).

Lynch was a significant case as the Inquest last two and a half months with the cost of the attendance at the Inquest (including preparation for the attendance) claimed at £750,000.00. The Claimant was represented by a QC, Junior Counsel, a Partner and Trainee Solicitor, most of whom were in attendance for a significant part of the Inquest.

The Defendant sought to show that most of the allegations contained in the Particulars of Claim were covered by pre-inquest disclosure. The Defendant identified 7 categories of work on which the Court was invited to decide that no attendance was required at all, and for all other aspects only a note taker was required:

  • Category 1 -Time spent that was irrelevant to the civil claim;
  • Category 2– where the witness statements are read out;
  • Category 3 – where the Claimants’ own witnesses were giving evidence;
  • Category 4 – where witnesses are called but the Claimants’ team asks no questions of them;
  • Category 5 – witness evidence which was said by the Coroner to be given by witnesses who were not directly involved;
  • Category 6 -‘Systems’ witnesses;
  • Category 7– witnesses who had previously given evidence to the IPCC disciplinary.

Master Rowley, as others had before him, applied the principles set out in the case of Gibson’s Settlement Trusts [1981] Ch 179, whereupon it had been held that pre-action costs were, in principle “incidental” to the proceedings and covered by the Court’s discretion. The Court in Lynch utilised the three strand test from Gibson which is detailed above.

It was held that time spent that was irrelevant to the civil claim (e.g. pre-inquest hearings and procedural matters) and time spent reading out witness statements were not recoverable.

Time spent under categories 3, 4, 5, 6 and 7 were deemed to be recoverable.

Master Rowley commented that:

“62. Earlier in his judgment, Davis J. referred to the use of the inquest to gather evidence rather than to do so by taking witness statements outside the inquest process. He could “readily envisage that in many cases such a course may be cheaper, and more useful, than the cost of proofing such witnesses afterwards.

“63. The theme of these two passages is the efficient and cost-effective method of evidence gathering for the purpose of the civil claim. The second quotation makes the point that concentrating the witnesses into a hearing may be much better than tackling them individually. But the first quotation warns against the possibility that the hearing may create costs that are disproportionate to the damages at stake or the saving to be made in the subsequent proceedings.”

Whilst Master Rowley was keen to stress that his observations were case specific the onus on proportionality should serve as a warning to practitioners.

When considering whether to attend an Inquest ensure that there is a clear benefit to attending (or at least there is a reasonable belief there will be) and that any costs of any attendance are proportionate to the proposed claim. This is of particular relevance given the ‘new’ proportionality test under CPR 44 makes it clear that even costs which are reasonably and necessarily incurred may be reduced.

The above highlights the difficulties in recovering the full cost of an Inquest. In the first instance the test under Gibson must be applied, followed by the test under Lynch and finally the proportionality test. The threshold is high and by the time the last test is reached swathes of time could already have been disallowed. Ensuring each test is satisfied is paramount to the highest possible recovery at assessment.

In summary, the recoverability of Inquest costs, in principle, remains, however, such costs will endure ever greater scrutiny. Accordingly, lawyers must always be prepared for a further inquest of costs at assessment. Anticipating this is key.


Sean Linley is a Costs Consultant at PIC.

To contact him on any matters raised in this blog, please click here.

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