Mulholland, R (on the application of) v HM Coroner for St. Pancras

MR JUSTICE CRANE: This application for judicial review is listed today for a full hearing following permission granted on the papers on 10 April 2002. The matter has previously been before the court, but I do not think in the event it has been listed for a hearing prior to today.

The claimants seek judicial review of the decision reached at an inquest held on 23 November 2001 into the very sad death of Mr Bunkor on 1 February 2001. There are a number of criticisms before the court to be decided in relation to the conduct of the deputy coroner. One of those criticisms involves his refusal to adjourn to permit a Mr Gavaras, a doctor, to give evidence. There is now a full report from that doctor, and indeed there is another report from a second doctor.

The difficulty that has arisen this morning is this. As I understand it, towards the end of last year, the claimant sought from the Attorney General his fiat, as it is called, under section 13 of the Coroners Act. Such proceedings which would require a Divisional Court to sit. The position yesterday was that the Fiat had not been granted and therefore the claimant was proposing to go ahead in the absence of agreement as to the adjournment. The timing on any view is unfortunate. The Attorney General has granted his fiat, and there will therefore be, if the claimant were to fail in this court today, proceedings before the Divisional Court. In those circumstances, I have had to consider what steps to take.

On behalf of the claimant, Mr Simblet does not apply for an adjournment. I can understand that one of the reasons for that must be the claimant's wish to have a decision from the Court, although it is right to say that Mr Simblet plainly fully appreciates the difficulties that now arise.

Counsel on behalf of the deputy coroner and counsel on behalf of the interested party, the Metropolitan Police, both seek an adjournment.

I have decided that it would be right to grant an adjournment. Shortly the reason is this. If the claimant were to fail, that could be because I have no power, not sitting as a Divisional Court, to order a new inquest simply on the basis that there is fresh evidence, a power which the Divisional Court in fact has. I would be considering Mr Gavaras' evidence primarily on the basis whether the deputy coroner was right to refuse an adjournment. It would also be incumbent on me to consider whether he had carried out his duty fully to investigate the death and also, if he had, the question of discretion.

However one analyses the issues, there is no doubt that the Divisional Court now has the power to look at the medical evidence on the basis of alleged new evidence in a much wider way than I do. It seems to me most undesirable from the point of view of duplication of proceedings and questions of costs for there to be a very real prospect that the claimant might fail before me, but nevertheless go on to argue overlapping matters before the Divisional Court. That does not seem to me a sensible way to conduct litigation as matters have turned out. I have not been asked today to consider questions of alleged lateness in seeking the Attorney General's fiat.

Questions of costs have been mentioned, but I take it that the parties will be content if I simply reserve the questions of costs. I see all counsel nod in relation to that. I have already sympathised with the claimant; as matters had worked out in this way it is very unfortunate from every point of view that the matter cannot proceed today, but unfortunately, in my view, the arguments for an adjournment are clear and compelling.

Unless there is anything further I can do, I simply adjourn the matter so that it can be listed for the Divisional Court together with the -- if it is right to call them -- separate proceedings, the proceedings resulting from the Attorney General's fiat being granted.

MR SIMBLET: Yes. It maybe that your Lordship ought to put that in terms of the order, that the proceedings be consolidated or joined in some way.

MR JUSTICE CRANE: They should certainly be listed together.

MR SIMBLET: That my learned friend said that is as far as your Lordship can go.

MR JUSTICE CRANE: It will not be a very complicated order; it can be drawn up so I can initial it.

MR SIMBLET: I do not know whether your Lordship will want to be one of the members of the Divisional Court, or whether that is going to create more problems than there are already.

MR JUSTICE CRANE: I have no objection. I do not think there would be any difficulty.

MR BEAR: I heard your Lordship say that costs should be reserved.

MR JUSTICE CRANE: Yes.

MR BEAR: If your Lordship looks at 16.41 of the CPR Rules, it is actually Schedule 94 so it is the RSC Order 94, Rule 14, the only concern that I raise with your Lordship is whether it is proposed to issue any further documentation in connection with the section 13 application. Your Lordship will see that an application under Sub-rule 2 must be made by claim form the claim form, the claim form must state the grounds of the application.

Our position on behalf of the deputy coroner is simply this: the only basis on which a section 13 application extends beyond the existing judicial review is what I have termed as the pure new evidence point.

MR JUSTICE CRANE: It looks from the rule as if there must be a claim, but I would have thought, looking at it quickly, it should be filed and served as soon as possible. It might be worth putting into the order that it may refer to the existing claim form insofar as there is an overlap.

MR BEAR: Yes.

MR JUSTICE CRANE: The only thing that will need to be new in the claim form is anything to make it clear exactly what new evidence is relied on.

MR BEAR: Indeed. We would be more than happy with that. What it would suggest, if it is agreeable to your Lordship, is that within seven days of today there should be a claim form which can cross refer for my part. I would be entirely happy to simply say that the claimant relies on the new evidence containing the reports of Mr Gavaras and Mr Watkins.

MR JUSTICE CRANE: That is a matter for --

MR BEAR: It maybe a matter for Mr Simblet.

MR JUSTICE CRANE: It does not need anything elaborate.

MR SIMBLET: One of the difficulties is one actually requires fresh public funding to pursue the section 13 application. It is not simply a matter of amending the community legal services certificate, nor is it a matter simply of applying for public funding the same way as one does for judicial review. There is, in fact, a separate and rather tardier proceeding. My solicitor has made some inquiries. It requires some exceptional consideration by the Lord Chancellor's Department. Having said that, there are no further costs. The only cost is writing on the claim form something along the lines of what Mr Bear suggested.

MR JUSTICE CRANE: You have six weeks under the rules. It seems to me that it would be desirable to make it shorter than that. If I were to say 21 days. You can use that argument to the authorities you are applying to and, if necessary, you can seek to persuade the court to ask for an extension.

MR SIMBLET: There are no problems with that. Thank you.