Platts v Coroner for South Yorkshire (East District)

MR JUSTICE WILKIE: This is a claim for judicial review of a ruling by Her Majesty's Coroner for South Yorkshire east district which limited his investigation at the inquest into the death of Mahdi Abdullah Nadir Al-Jaf ("Mr Al-Jaf) to the "road traffic" aspect on the grounds that Article 2 of the European Convention on Human Rights was not engaged so as to require the inquest to investigate the events in the few days prior to his death. Permission has been granted by the single judge for this ruling to be judicially reviewed.

It is also a renewed application for permission to judicially review his ruling that the claimant, Nicola Platts, was not entitled under rule 20 of the Coroner's Rules 1984 to examine witnesses at the inquest because she had failed to satisfy the coroner that she was within rule 20(2) and in particular that she failed to satisfy the coroner that she fell within sub-rule (a) as a partner of the deceased, or sub-rule (h) that she satisfied the coroner that, in his opinion, she was a properly interested person.

Having heard extensive oral argument, I am satisfied that there is an arguable case on this aspect of the matter and I grant permission. The parties are agreed that the hearing can stand as the hearing of the claim for judicial review, both in respect of the Article 2 point and the rule 20 point. I do so.

The coroner was under a duty to hold an inquest into the death of Mr Al-Jaf by virtue of section 8(1) of the Coroner's Act 1988, namely that there was reasonable cause to suspect that he had died a violent or unnatural death. The coroner's powers to conduct the inquest include the power to conduct an inquisition into "how, when and where the deceased came by his death", pursuant to section 11(5)(b)(ii) of the Act. Article.

This case concerns the identification and application of the correct test for determining whether Article 2 is engaged. I have been referred to Gentle v Prime Minister [2008] UKHL 20 where the opinions of their Lordships were handed down on 9th April of this year. The test is, I conclude, as formulated in paragraph 6 of the speech of Lord Bingham where he said as follows:

The case of Gentle makes clear, if it were needed, what was said by the Court of Appeal in Takoushis v Inner North London Coroner [2005] EWCA Civ 1440, and in particular at paragraphs 37 to 40. The Court of Appeal in Gentle had considered that what Takoushis had established was not clear, but the statement of principle of Lord Bingham in the case of Gentle now makes it clear that the test is as he has set it out.

In the prior case of Middleton v West Somerset Coroner [2004] UKHL 10, the Article 2 duty to initiate an effective public investigation and its form as a coroner's inquest was described by their Lordships in the following terms by Lord Bingham. In paragraph 3 he said:

The circumstances in which a substantive Article 2 duty may arise so as potentially to trigger the investigative Article 2 duty have been described in Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50, decided on 30th July of this year. At paragraph 35 of the speech of Lord Bingham, he said as follows:

Apart from Article 2, the duty of the coroner in respect of the holding of an inquest was described in the case of R v Her Majesty' coroner for Humberside and Scunthorpe ex parte Jamieson [1995] QB 1 at page 26 C and D in the judgment of the court, delivered by Sir Thomas Bingham MR (as he then was):

In the case of R v Inner West London Coroner ex parte Dallaglio and Another [1994] 4 AER 139, page 164 H to J, referring to Jamieson he said that the court:

In the present case, the coroner's ruling on the Article 2 point is to be found on the last page of the 31 pages of the ruling in the following terms:

Counsel for the coroner, supported by counsel for the Chief Constable who appears as an interested party, contends that the coroner has addressed the correct test, albeit not in the correct terms as their Lordships have described it subsequently. In my judgment, that is correct. He has not asked himself the wrong question. That, however, does not conclude the matter, because the issue then arises whether any reasonable coroner, having posed the question, would have concluded as he did in the light of the evidence which was before him.

In so far as it is relevant, rule 20 of the Coroner's Rules 1984, SI 1984/552, provides as follows:

The claimant acknowledges that the coroner was entitled to conclude on the facts that she did not fall within rule 20(2)(a). The focus of this part of the claim is whether the coroner was wrong to conclude that she did not fall within 20(2)(h). In that regard, the leading authority is the case of Driscoll v Coroner for the Southern District of Greater London, reported in the Justice of the Peace Reports for 1993 at page 45. I have been referred to the following passages in the judgments of Kennedy LJ and Pill J (as he then was): Kennedy LJ, at page 56 B to G and Pill J at page 159 C and G. The citation from Kennedy LJ reads as follows:

Counsel for the coroner emphasises the fact that a reviewing court should be very slow to interfere with the coroner's opinion, but equally relies on the passages in Driscoll, to which I have already referred, to which he contends the coroner had due regard.

Having set out relatively briefly the legal parameters, I have now to consider whether in effect on each claim the coroner came to conclusions to which no reasonable coroner, in the light of the evidence, could have come. The claimant was, it is common ground, Mr Al-Jaf's partner for well over a year, living with him until March 2005. Mr Al-Jaf developed depression and mental health difficulties in the months before his death which caused difficulties for the couple's relationship. This gave rise to disagreements about their future lives together, and about five weeks before his death he moved out to go to live with his brother in Ipswich though they still talked to each other on the phone every day. Mr Al-Jaf had admitted himself to Ipswich Hospital suffering from some form of complaint and reported to her that he was "going crazy". The claimant asked Mr Al-Jaf to return to Sheffield to live with her which he did, returning on 9th April 2005. His mental state, however, was disturbed, very agitated and, according to the claimant, on the morning of 10th April he said to her daughter "Please kill me, kill me now", and ran out of the house. The claimant took Mr Al-Jaf home after calling an ambulance but he was taken to his cousin's house on 10th April. The evidence the claimant gave to the coroner described a man giving the impression of being severely mentally disturbed. She spoke to him at 4 o'clock in the morning of the 11th and again later that day. That was the last contact she had with him.

On the night of 11th and 12th April, just after midnight, police and ambulance were called to Mr Al-Jaf's cousin's house. Mr Al-Jaf had stabbed himself. Mr Mallender, a paramedic, attended. His statement to the police, which was before the coroner, described Mr Al-Jaf as having two small puncture wounds in the chest and the man said "I am a bad man, I deserve to die". The man told him he had caused the injuries to himself. He was admitted to Rotherham District General Hospital. A nurse, Nicola Dawn Cook, provided a statement which was before the coroner. She described Mr Al-Jaf being brought to the ward in Accident and Emergency. He was calm at that time and allowed them to treat him. His notes indicated that a psych liaison had been requested and a nurse did attend but, because he was asleep, she only obtained his details.

The following evening Miss Cook was on duty again. During the handover period, Mr Al-Jaf became aggressive and was pushing trolleys at people who went by. A charge nurse from another ward and security came to deal with him and he was eventually calmed down. Later on, during the night shift, a house officer was on duty and taking an interest in Mr Al-Jaf. Mr Al-Jaf calmed down but did keep jumping up and down and seemed intimidated by men. He kept pointing at women and saying "I want you". He also said "Nicola gives me drugs, I go mad". The house officer was concerned by his behaviour and telephoned psych liaison to ask for a re-assessment but was told that they were happy with the earlier assessment and did not intend to do another one. The house officer also contacted the senior house officer by telephone and was told that if Mr Al-Jaf wanted to leave it was in order to let him go. As a result of this, Miss Cook spoke to Mr Al-Jaf and asked him if he had anywhere to go. He gave two telephone numbers, one for his girlfriend where there was no answer, and another to the place he had been living and suffered his injuries. The person who spoke from that address did not want anything to do with him because of his previous behaviour and put the phone down. She says that eventually she asked Mr Al-Jaf if he would like to leave and he calmly said that he would. He then left calmly with the security guards. She did not see him again.

Mr Evans was a security guard at the same hospital on duty on 12th April. He too provided a statement which was before the coroner. He said that shortly after 11 pm on the night of 12th April he and another security officer were asked to attend the ward to deal with a patient who was shouting and bawling and being very noisy and waking other patients. They found the man standing shouting and bawling. He then, amongst other things, said "I fight in Iraq war, I kill people, I want to die", and then again "I want to go home, I am not frightened of anyone. I want to die". They tried to reassure him but he kept standing up and trying to march around the ward. He did calm down for 10 to 15 minutes but then started ranting and raving and repeating what he had said. The staff nurse intervened and asked him if he wanted to stay or leave. He said "I want to go". He gave his mobile phone to the nurse and said "Ring this person". She did. Mr Evans could overhear the reply which was "No, no, no, don't send him here, he's crackers". The nurse tried a second call to his brother and again Mr Evans overheard the reply which was "No, do not send him here, I'll call the police. He walks around in the night and is unpredictable". The third call was to his girlfriend but there was no answer. He was again asked if he wanted to stay or go and he said "I go. I am not afraid to die." It was approaching midnight and Mr Evans had to leave the ward and was replaced by Paul Foster.

Mr Shaw, also a security officer on duty that night, supplied a statement. In that statement he said that at 8.22 pm on 12th April he attended the ward to deal with a male patient causing a disturbance. He was not violent but was noisy and demonstrative, ranting and raving and disturbing the other patients. He says that he remembered that the doctor wanted to release him but had some concerns, so she phoned everybody up to ensure that he had somewhere to go. She called his family but that was not much good. She also called the police but they could not help. He was not aware whether the man had had a psychiatric assessment. During the time that he was being observed by Mr Shaw he alternated between being calm and ranting and raving. At 11.19 Paul Foster had replaced Mr Evans and they escorted Mr Al-Jaf from the hospital. He was happy to leave and they were showing him the way, gently holding an arm each. As soon as he got outside the main entrance he no longer wanted to leave. He let himself collapse and lifted his feet from the ground. They lowered him to the ground. He lay on the ground obstructing the ambulance bays. He was saying to Mr Shaw, "You kill me, you're a big man, you kill me". Mr Shaw called the police who attended a short time later and, after some persuasion, they took him away without incident. Mr Shaw could not recall whether at any time he specifically said that he would kill himself, but certainly he said that he was not afraid to die.

Police Sergeant Greenwood also provided a statement which was before the coroner. He first got involved on the evening of 12th April at about 10.25. He was involved with reviewing incidents and dealing with any that did not require the attendance of a police officer. At about 10.25 pm there was an incident he reviewed referring to an agitated male patient at the hospital. He called the hospital and spoke to the doctor who then passed the phone over to the staff nurse. She explained that the patient was agitated and that she was concerned what he may do on leaving as he had no real place to go. They had tried ringing friends for him but no-one wanted to know. Sergeant Greenwood asked her what she would like the police to do and she replied that she had rung as a back covering exercise.

At around 11.05 they became aware of a second call from the hospital saying that the patient had now assaulted a member of staff and had been escorted outside. He spoke to Staff Nurse Cook again on the telephone. She was unaware of the second incident of assault. He asked her to check and see if any of her staff had been assaulted and the result was negative. She explained since the last phone call the patient had been escorted off the ward by security as a means of discharging him. The information being provided was very sketchy and he contacted Police Constable Walker and Police Constable Fowler at the scene. They discussed various options which included doing nothing and releasing him though neither of these was considered appropriate as this was the second incident involving him. The second option was to transport him to the girlfriend's address but that was not thought appropriate as she may not have been in. They further discussed bringing him into custody for breach of the peace and the options that would be open to the Custody Sergeant if they did that. The main consideration there was detaining him until a breach of the peace was no longer likely or deciding that straight away and releasing him through the front door of the police station. He mentioned the issue of dealing with Mr Al-Jaf for mental health matters, but ruled that option out as he had just come from the hospital where he had been assessed by the mental health team that day.

PC Greenwood recorded that he was aware of issues surrounding the detention of vulnerable persons in police cells. If a person is suffering from a mental disorder, action should be taken in the form of having the person assessed by an approved social worker. He was the one who attended the custody suite and liaised with the Custody Sergeant. A discussion took place concerning the potential disposal of the case and concerns over detaining him at the police station. Custody sergeant Fox decided to accept detention and place Mr Al-Jaf before the morning court.

The duty solicitor at the morning court was Anthony Griffiths. He spoke to Mr Al-Jaf in the cell area. He would not or could not explain why the details which he gave to Mr Griffiths were different to those given to the police. He confirmed that he had been lying down on the road at the hospital and arguing with the staff at the hospital. He said that he wanted a quick release from custody but that was common expression of opinion in Mr Griffiths' experience. He then says this:

Also before the coroner was a statement from the senior legal advisor at Rotherham Magistrates' Court. He says that when the case was called on Mr Griffiths indicated that the defendant was in a position to admit the allegation causing breach of the peace but also indicated that the defendant "wanted to go to heaven", or words to that effect. That indication, together with the defendant's general demeanour, caused the District Judge to question whether Mr Al-Jaf was in a sufficient condition to admit the conduct complained of and to give informed consent to a bind over. Mr Griffiths conceded that the defendant appeared to have some degree of mental instability.

The District Judge indicated to the prosecutor that the options open to him were either (1) to request that the defendant be seen informally by the community psychiatric nurse attached to the Court Diversion Scheme for defendants with mental health problems in order to assess his condition, or (2) to invite the Crown Prosecution Service to "take a view", that is to say withdraw the application. The CPS indicated that the latter would be more appropriate and requested that the application be withdrawn. The District Judge advised the defendant that the CPS were withdrawing the application and he was to be released, whereupon the defendant gave an indication that he wanted to be with his son, or words to that effect. Following that, he was released at approximately 10.22.

Also placed before the coroner was the custody record in respect to Mr Al-Jaf and a misconduct investigation conducted after Mr Al-Jaf's death. The custody record records that the prisoner was considered to be at risk as being a self-harmer. The police investigation report confirmed that, following treatment of his wounds and an assessment being made of his psychiatric state, the hospital staff advised Mr Al-Jaf that he was fit to leave, although he was somewhat reluctant to do so and became abusive and increasingly irate, such that the police were called and he was arrested to prevent a breach of the peace. That report presented Mr Al-Jaf as posing a medium risk to himself and a check was requested by the Custody Sergeant. It also records that the psychiatric nurse working for the Rotherham Criminal Justice Liaison Service, who was available to examine persons in police cells, was at work from 9 am on Wednesday 13th April, but no referral was made to her. The Custody Sergeant, Sergeant Fox, had indicated in the investigation that there had been no referral by the police to the psychiatric service and he raised the question whether the initiative should have been taken by them or whether the hospital should have informed the Criminal Justice Liaison Service about the circumstances of his detention so as to enable them to take any steps they saw fit.

Unhappily, once Mr Al-Jaf was released from detention by the court he left the court premises and, within 50 minutes of so doing, stepped in front of a heavy goods vehicle which had no opportunity to stop or avoid him and knocked him down, killing him.

In addition to the various witness statements and original documents, the coroner had the benefit of a detailed skeleton argument submitted on behalf of the two Foundation Trusts who are interested parties. That skeleton included a detailed account of what the Trusts said had happened at the hospital, though it was not supported by any contemporaneous notes.

It was said that on 11th April an ambulance had taken the deceased to the Rotherham District General Hospital at around midday. He was seen by two section 12 Mental Health Act 1983 approved social workers from the Crisis Resolution and Treatment Service who had been called because the deceased stated that he wanted to die. They did not find him to be suffering from a mental illness and assessed that he had no suicidal ideation, though he complained of lack of sleep following a disagreement with his girlfriend. He was prescribed something for his insomnia and referred to his GP. He was thereby discharged.

On 12th April at 12.30 am he was brought to Rotherham District General Hospital Accident and Emergency after having stabbed himself twice superficially in the left chest and abdomen. This had occurred whilst he was staying overnight at his cousin's house. He was seen by a junior surgical doctor and admitted to Ward B5. He stated that he wanted to die and was again referred to the Crisis Team for assessment. They confirmed that they would attend during the day. He was seen by one of the social workers from the previous day and by the community psychiatric nurse on the ward at 1.30 pm. They assessed him not to have a mental illness and no suicidal ideation. The deceased reported that his act of self-harm was an impulsive act and there were no thoughts of repeating it. His plan was to resurrect the relationship with his girlfriend. He understood that he was to be discharged and was given contact members for further support and was in agreement with that plan. However, he was not discharged immediately and became aggressive later that day, threatening to kill himself and his girlfriend and making sexually explicit remarks to a nurse.

At 8.30 pm further advice was sought from the Crisis Team. The clinical nurse specialist with the Team reviewed the records from the two previous assessments and found no evidence of mental illness. He stated that there was still a concern so that the on-call psychiatric senior house officer should be contacted. The ward house officer, Dr Beech, spoke to the on-call psychiatric SHO, Dr Vallapil, and requested further advice before discharge. Dr Vallapil spoke to Mr Kitchen who confirmed the findings from the two previous assessments. In these circumstances it would be usual to ask a psychiatric SHO to assess. Dr Vallapil informed Dr Beech he had spoken to the Crisis Team who considered that there was no evidence of mental illness and there was no objection to a patient being discharged if medically fit. Dr Beech informed the specialist registrar, who in turn contacted Dr Vallapil, and asked him for advice as to how to manage him if he became violent. Dr Vallapil reiterated the Crisis Team's assessment of no mental illness. If he did become violent the police should be contacted.

The coroner's ruling occupies some 30 pages but the ruling on Article 2 was encompassed within a single page. I have already stated what he said. I have already indicated that, in my judgment, the coroner did not misdirect himself as to the nature of the test he had to apply. However it is expressed, whether it is a possible or a potential or an arguable breach by the state of its Article 2 obligations giving rise to an obligation to hold an appropriate investigation, the coroner was plainly applying that level of test. He concluded that there was "nothing" in the documentation to suggest that the state was in breach of any duty owed by the state to him.

The claimant argues that this is a conclusion which, on the evidence, no reasonable coroner could have come to. I bear in mind that the coroner, being the primary judge of fact, is entitled to substantial respect in his fact-finding role and in the inferences which he draws from his findings of fact, and that this court should be slow to characterise his conclusions as unreasonable in the Wednesbury sense. In my judgment, however, this is such a case. It was plainly wrong, in my judgment, for the coroner to say that there was nothing at all in the documentation which gave rise to a possibly arguable case that the state in one or other of its manifestations was at fault in failing to address the mental condition of Mr Al-Jaf, and in particular his repeated statements, either explicitly suicidal or inviting the inference that he wanted to die, all of them made within a matter of hours of him apparently deliberately causing a road accident in which he was killed.

The evidence which I have rehearsed, on any reasonable view, in my judgment, does raise an arguable case that the state in its various manifestations, through individual failings or a systemic failure, was in breach of its Article 2 obligations. Even the skeleton argument of the Trust presented to the coroner revealed that Dr Vallapil was asked for advice before discharge in circumstances where it would be usual for him to have conducted an assessment but failed to do so, limiting himself simply to speaking to the crisis team who had last assessed him of the order of 7 hours before. Furthermore, the evidence of the circumstances in which the police became involved was such that it is arguable that the Trust should have been considering whether it was safe to release him or to liaise with the psychiatric services available to the police. The police had, it would appear, taken note of his vulnerable condition and, whilst nothing occurred overnight to give rise to immediate concern, there were concerns raised at the court which, it is arguable, should have caused the CPS to take a different view than to adopt the course which gave the court no option but to release him unconstrained and unaided.

These are all concerns which, in my judgment, on the evidence before the coroner, would have caused any reasonable coroner to form the view that the low threshold required before the Article 2 obligation to hold an investigation into the circumstances surrounding his death had been crossed, and the coroner's conclusion that there was nothing in the documentation which gave rise to any such consideration and the total absence of any analysis as to why that was so in the face of that evidence, does enable this court to take the unusual step of concluding that the coroner took a decision which no reasonable coroner could have taken.

Therefore, in my judgment, the challenge to the coroner's Article 2 decision succeeds and, subject to argument about the form of remedy, I propose to quash the decision of the defendant to limit the scope of the inquest to the road traffic aspects of the death. I am prepared to issue a declaration that the death requires an investigation which is compliant with Article 2. The extent of that investigation will plainly be a matter for the coroner who will conduct the inquest, but it seems to me that it would be sensible for him or her to consider whether it will be sufficient to commence the investigation with the return of Mr Al-Jaf from Ipswich on 9th April 2005.

The claimant does not seek to argue that the coroner erred in concluding that she did not fall within rule 20(2)(a). What she says is that the coroner erred in failing to form the opinion that she was a properly interested person so as to fall within rule 20(2)(h).

The coroner referred specifically to the judgments in Driscoll; in particular, the passage in the judgment of Kennedy LJ that "a properly interested person must establish more than idle curiosity". The coroner concluded that the claimant did have more than idle curiosity and she was concerned to see whether or not "the system" had let down her former boyfriend. However, he concluded that that was not sufficient to allow her to participate in the inquest.

He also referred to the judgment of Pill J that "the word 'interested' should not be given a narrow or technical meaning, it is not confined to a proprietary right or financial interest in the state of the deceased. It can cover a variety of concerns about or resulting from the circumstances in which the death occurred". The coroner then went on to refer to the fact that Pill J went on to consider the interests of those in paragraph A to E and F and G. The coroner then went on:

The claimant says that the coroner, in relation to the question of her interest, misdirected himself as to the nature of the evidence because of the following passage at the bottom of page 30 where he said this:

The focal point of the decision is his conclusion that, because he had found that she did not fall within rule 20(2)(a) she became a "stranger to the inquest" and that mere feelings of guilt about having allegedly let down her former boyfriend, even if well-founded, would not be sufficient to enable her to participate in the inquest.

In my judgment, and bearing in mind the caution with which this court should approach an invitation to interfere with an exercise of judgment which the rules impose on a coroner, this coroner has failed totally to engage with a number of issues. First, although he had found that she had ceased to be the partner of the deceased, this had occurred very shortly before these events and his mental state was central to the break up of the relationship. Second, the deceased had, despite the break up of the relationship, returned to live at her home, apparently with a view to re-starting the relationship, but left the home because of his increasingly bizarre behaviour within a few days of his death. Third, the increasingly bizarre behaviour which caused him to leave the claimant's home culminated in him stabbing himself, being admitted to hospital, repeatedly indicating either that he wished to die or to kill himself, resulted in erratic behaviour causing him to be arrested, detained, appear before the court and eventually, having been released, to walk in front of a heavy goods vehicle. Fourth, he failed to consider whether the very close connection with the claimant, that behaviour and that outcome, was such as to make her a properly interested person, notwithstanding the fact that she did not at the time fall within rule 20(2)(a). The coroner seems, erroneously, to have gone directly from his conclusion on rule 20(2)(a) to an assertion that she thereupon became a "stranger" to the inquest even though he accepted that she genuinely had more than idle curiosity as her motivation. Further, he seemed to isolate the question of her feelings of guilt about his death as being the only ingredient in forming her wish to question the system whereas he ought to have considered whether the whole of her relationship with the deceased was such as to qualify her under rule 20(2)(h).

In my judgment, the coroner's failure to engage with any of these issues and his erroneous approaches which I have described mean that he failed to have regard to highly relevant matters so that his opinion was reached in a way which was unlawful in a Wednesbury sense. In my judgment, borrowing the words of Pill J, had the coroner reminded himself that the word "properly" imports not only the notion that interest must be reasonable and substantial and not trivial or contrived, but also that the concern of the person seeking to intervene is one genuinely directed to the scope of an inquest as defined, the only reasonable conclusion to which the coroner could have come was that the claimant's interest was reasonable and substantial, not trivial or contrived. That, coupled with his conclusion that her wish to participate in the inquest was genuine and directed to a proper motive -- namely questioning whether the system had let down the deceased -- leads me to conlude that he could only reasonably have come to the conclusion that she did fall within rule 20(2)(h).

Accordingly, in my judgment, this part of the claim succeeds too and, subject to argument, I will review the decision of the coroner to exclude her from participating by quashing that ruling and declaring that she is entitled to participate in the inquest as a properly interested person within the meaning of rule 20(2)(h).

Does anyone have anything to say about the form of order?

MR CRAGG: My Lord, from the claimant's point of view, the decisions of the coroner being quashed and the declarations made would be entirely appropriate from our point of view. We do not have any problem with that.

MR JUSTICE WILKIE: I have certainly not sought to make any declarations as to the scope. I have simply indicated what might be sensible parameters.

MR CRAGG: My Lord, I think that is right. It must be for the coroner to decide for himself.

MR JUSTICE WILKIE: You are happy with the form, Mr Hoskins?

MR HOSKINS: My Lord, yes, I am. Obviously your Lordship's guidance will now be taken on board by the coroner who deals with it. He will no doubt discuss with all involved the best way forward. Simply on the rule 20 point it seems to me that by quashing the decision that has been made and making the declaration, that concludes matters.

MR JUSTICE WILKIE: Sorry, I think you have no contribution to make to this argument, Mr Bassett.

MR BASSETT: My Lord, I do not think I can reasonably add anything.

MR CRAGG: My Lord, on the basis that your Lordship has found that the coroner has acted in an unreasonable way in both decisions, we would like to apply for our costs in this matter from the coroner. I know that Mr Hoskins is going to refer to a case called Davis, which is Court of Appeal judgment which said that costs in these cases are unusual; but the usual rule, of course, is that the successful party is entitled to their costs. Given the nature of the errors found by your Lordship, we would ask for our costs.

MR JUSTICE WILKIE: Is your client subject to Legal Services Commission funding?

MR CRAGG: She has a public funding certificate. The effect, of course, if she is unsuccessful in obtaining her costs is twofold. First of all, there is a drawing on the Legal Services Commission funds, and also the funding available, for those instructing me at least, is on a safety net basis rather than an inter-parties costs basis.

MR JUSTICE WILKIE: I suppose I ought to consider the question independently, whether she is publicly funded or not.

MR CRAGG: My Lord, yes.

MR HOSKINS: My Lord, can I hand up Davis. (Handed). This is the essential case on costs in this area of the law. A bit of a dispute had been going on between the two different divisions of the Court of Appeal, Brooke LJ on one side and Simon Brown LJ (as he then was) on the other. Brooke LJ's view has prevailed. If I can take my Lord first to the headnote.

MR JUSTICE WILKIE: Yes.

MR HOSKINS: My Lord, so far as the judgment is concerned, the case contains a long review of what the practice of the Divisional Court had been, but the essence of the case which supports the headnote is really to be found at paragraph 47, right at the end.

MR JUSTICE WILKIE: I will read that to myself, yes. Do I have to read beyond 47?

MR HOSKINS: I do not think you do. Paragraph 47 is really the gist of it.

MR JUSTICE WILKIE: So if the coroner does not turn up at all there is no question of costs, if the coroner turns up and fights his corner it is the usual position, but if the coroner turns up and adopts a neutral stance then normally it is no costs.

MR HOSKINS: Yes, unless there are special circumstances.

MR JUSTICE WILKIE: For example the claimant not being publicly funded.

MR HOSKINS: Yes. That seems to be the position. Can I state to your Lordship that I hope in this case your Lordship is satisfied that there has been a neutrality of approach in respect of the matter on which permission was given, ie, the Article 2 point. I have turned up on behalf of the coroner really to seek to assist the court in helping formulate the appropriate test and in looking at the coroner's decision. I can say that I think that was necessary in this case, because your Lordship has referred to the recent cases of Gentle and Savage. None of those were in the claimant's list of authorities. They were all put in at my behest. Indeed, you will remember that they did not feature in my learned friend's argument to you at first instance, which was really, in my respectful submission, based on an approach to Takoushis which has been overtaken by Gentle. I hope that the neutrality of approach here has assisted the court, and your Lordship will have noticed that I have not sought to argue the facts at all in this case or to put any particular interpretation --

MR JUSTICE WILKIE: So you say you fall within category three.

MR HOSKINS: I say that the coroner firmly falls within category three. The only part of the case where one has sought to support the coroner's decision could be said to be the rule 20 point, but that point has not added to the costs here, my Lord, because it has really come on the coattails of the Article 2 point for which permission was granted. If the matter can be renewed as an oral application before your Lordship independently of the Article 2 point, no doubt the coroner would not have sought to appear on that.

So, my Lord, I say this is an Article 3 case. The exception to the usual Article 3 approach suggested by Brooke LJ does not apply here. It is not a privately funded claim. In those circumstances I would invite your Lordship to exercise your discretion as to costs by the usual order. I can say that had this application been dismissed, the coroner would not have sought costs. That would be an academic exercise in this case in any event. I am confirmed in that by my solicitor.

MR JUSTICE WILKIE: Yes.

MR CRAGG: My Lord, I accept the force of the judgment of the Court of Appeal in Davis, but I think this is a case where the coroner has done more than just turn up and take a neutral approach. Our submission is that the decision of the coroner has been actively supported and our application has effectively been opposed. It is one of those cases where, especially given the Wednesbury unreasonable nature of your Lordship's ruling --

MR JUSTICE WILKIE: It seems to me that the circumstances identified in are quite a way beyond misconduct.

MR CRAGG: My Lord, yes. I am doing the best that I can to persuade you. It is one of those cases where the claimant should receive her costs.

My Lord, if unfortunately I am wrong about that, and the Court of Appeal in Davis I think did say that it was unusual for the coroner to have a costs order made against them, then all I can do is ask for a detailed assessment of the claimant's publicly funded costs. I suppose we can say we will take the hit.

MR JUSTICE WILKIE: It seems to me that although the normal approach is that the successful party would be entitled to costs, coroners do seem to be in a special category. I am satisfied that the coroner has attended and helpfully assisted the court but in a neutral way, so that this is case which falls within category three identified in paragraph 47 of Davis v Deputy Coroner. Therefore, in accordance with what now seems to be the usual practice in these types of cases, I will make no order for costs save for detailed assessment of the publicly funded costs of the claimant.