Inquest costs in civil proceedings

Inquests play a crucial role in determining the circumstances surrounding a person’s death. In situations where a person has died due to the negligent acts of another, it is sometimes useful for a solicitor to attend the inquest to obtain evidence for subsequent proceedings. The question of to what extent the costs of the same are recoverable inter-partes in the civil claim has been a matter of contention.

The recoverability of inquest costs is governed by Section 51 of the Supreme Court Act 1981. Costs of and incidental to civil proceedings are at the discretion of the court, with the court having full power to determine by whom and to what extent the costs are to be paid. 

The case of Re Gibson’s Settlement Trusts [1981] CH 179 sets out a three-stage test that must be met before the costs can be recoverable: the costs must be of use and service in the action, relevant to an issue, and attributable to the paying party’s conduct. Since then, this test has been applied and re-affirmed numerous times. 

Roach v Home Office [2009] EWHC 312 (QB) confirmed that inquest costs were recoverable in principle where they are costs 'of and incidental to' the civil proceedings. The Court declined the Defendant’s invitation to lay down guidelines, stating that each case should be decided by the Costs Judge with reference to its own circumstances.

In the matter of Lynch and Others v Chief Constable of Warwickshire Police and Others (2014) SCCO 14 November 2014, Master Rowley (while stating that he did not mean to lay down any form of general guidelines) clarified what time spent at the inquest might be held to be recoverable, allowing time relating to: 

• witnesses who instructed the Claimant’s team; 
• witnesses who were asked no questions by the Claimants’ team; 
• witnesses who were said by the Coroner not to be directly involved, and; 
• witnesses whose evidence related to the systems of the three Defendants. 

Master Rowley also allowed some time relating to witnesses who had previously given evidence at a disciplinary hearing (as they might have said something different at the inquest). 

A few years later, in the case of Douglas v Ministry of Justice & Anor [2018] EWHC B2 (Costs) Master Leonard carefully applied the Gibson Test to exclude work in respect of liability, as the Defendants had already made a full, unqualified admission of liability ahead of the inquest. Master Leonard did however allow the costs of obtaining disclosure from the Defendants and obtaining witness evidence from them, as this related to quantum.

Subsequently the case of Fullick v Commissioner of Police for the Metropolis [2019] Costs LR 1231 saw Mrs Justice Slade rule that costs of attending a pre-inquest review could be recoverable (in contrast to the decision in Lynch, which had ruled these unrecoverable as they did not provide evidence for the civil claim). Interestingly, Master Rowley sat as Assessor assisting Mrs Justice Slade on this case.

In Greater Manchester Fire & Rescue Service v Veevers [2020] EWHC 2550 (Comm), HHJ Pearce found that, in contrast to Douglas, the Defendant’s pre-inquest agreement to compensate the estate and dependents of the Deceased was insufficient to be held as an admission of liability and so the costs of preparing for and attending the inquest were costs “of and incidental” to the claim. HHJ Pearce’s judgment, at para 55, sets out a useful summary of the position in respect of the law in respect of the recovery of inquest costs in a civil claim:

“Having regard to the decisions referred to above, the law in respect of the recovery of the costs in a civil claim for the preparation for and attendance at an inquest, in so far as those costs relate to the establishing of liability in a subsequent civil claim, can be summarised as follows:

(a) Inquest costs may be recoverable in so far as reasonable and proportionate, so long as they can properly be said to be incidental to the civil claim;

(b) Such costs will not be recoverable if liability is no longer in issue between the parties, since the costs are simply not incidental to something in issue in the civil claim;

(c) In determining whether liability is in issue, the court must look at all the circumstances of the case, but the central issue is likely to be whether the prospective defendant has admitted liability or otherwise indicated a willingness to satisfy the claim;

(d) Liability will not be in issue if it has been admitted since such an admission is binding unless the court subsequently permits it to be withdrawn pursuant to CPR 14.1A.

(e) However, the Costs Judge is entitled to look with care at anything less than an unqualified admission to see whether the prospective defendant's position is one from which it may resile or which leaves matter in issue between the parties.

(f) In particular, if the defendant's position is not one of unqualified admission in circumstances where such an admission could have been made, the Costs Judge may be entitled to find that the failure to make an unqualified admission justified the conclusion that the defendant might exercise its right to resile from the admission and that therefore the costs of the inquest could properly be said to be incidental to the civil claim.

(g) If the costs can be justified upon these principles, the mere fact that there are other reasons why the family of the deceased should wish to be represented at an inquest, most obviously to avoid the inequality of arms between unrepresented family members and a represented public body does not mean that the costs are not recoverable. It is enough that the attendance to secure relevant evidence in relation to matters in issues was a material purpose for the attendance.”

More recently, in Briley & Ors v Leicester Partnership NHS Trust & Ors [2023] EHWC 1470 (SCCO) Costs Judge James found (in line with Fullick) that, on the facts of the case, it was “reasonable, proportionate and of use and benefit to the civil claim to [attend and prepare for] the pre-Inquest review hearings.”

Despite the Gibson Test being over 40 years old, Roach being over 15 years old, Lynch approaching 10 years old and Fullick approaching 5 years old, the question of the extent of recoverability of inquest costs continues to be raised and litigated. 

Generally, inquest costs are found to be recoverable when attendance at the inquest (or pre-inquest hearings) provides evidence for use in the subsequent proceedings, especially where a full, unqualified admission of liability has not been made ahead of the hearing. 

Inquest costs are still subject to the test of proportionality: as Master Rowley said in Lynch, “the hearing may create costs that are disproportionate to the damages at stake to the saving to be made in subsequent proceedings” (although of course the test of proportionality has changed since 2014 and now costs must be “proportionate to the matters in issue”).

Inquest costs are coming under increased scrutiny. Lawyers seeking to recover inquest costs in the civil proceedings must (of course) ensure that their retainer covers such work, and would be well advised to keep in mind that they must justify these costs at assessment. The attendance must be to obtain relevant evidence in relation to matters in issue. Each case however continues to turn on its own facts, and the discretion of the Court is the final arbitrator.