Stewart & Anor v Medway NHS Trust

I have before me the bill of costs in clinical negligence proceedings under the Fatal Accidents Act. In those proceedings liability has been admitted and the claimants are entitled to the costs of liability and causation. The question I have to decide is whether costs of attending the inquest by counsel and the costs of preparing for such attendance are recoverable under that order.

The defence say that such costs are not recoverable. The defence say that the order for costs in this case is limited to costs which are of and incidental to the clinical negligence proceedings and that the costs of another action cannot be of and incidental to this action.

They rely on authority including Wright v. Bennett[1948] 1 KB 601, Department of Health v. Envoy Farmers Limited [1976] 1 WLR 1018, Aiden Shipping Co. Ltd. v. Interbulk Ltd. [1985] 1 WLR 1222 (Court of Appeal Division : for subsequent proceedings see [1986] AC 965) and Contractreal Ltd. v. Davies [2001] EWCA Civ 928. A contrary authority is noted. It is the decision of Clarke J. in East Coast Aggregates v. Para-Pagan (Clarke J., 8 August 1996, unreported), the Marchioness case, as we normally refer to it. In that case the principle suggested by the defence was not taken and therefore it is open to them to argue that that decision to the contrary is not conclusive.

The claimants' counsel suggests a simpler approach. He starts, as does the defendant's counsel, with the decision of Megarry J. in Re Gibson (Settlement Trusts) [1981] Ch 179 and says that pre-issue costs are recoverable if reasonable. He suggests it was reasonable to incur costs on the inquest as a prelude to running the clinical negligence claim.

He seeks to demonstrate that the purpose of involvement in the inquest was, wholly or partly, in order to facilitate the negligence claim. This is demonstrated in the many notes passing between solicitor and counsel referring to the importance of a verdict of neglect. It is shown explicitly in a letter written to a doctor instructed. The clinical negligence claim is specifically mentioned in the letter to him dated 12th May 2000. Indeed, when proceedings were started the claim was notified to the hospital long before the inquest was held. It was notified, if not before, on 31st March 2000.

Counsel relies heavily on the Marchioness case and says just as some of the costs were held reasonable in that case, to the extent that they are reasonable I should allow those costs in this case.

In reply the defence accept that the involvement of the claimants in the inquest might well have been wholly or partly motivated by the eventual negligence claim, but motivation by itself is not relevant. I should look at the purpose of the proceedings in question. The purpose of an inquest is, of course, quite separate and distinct from the purposes of a negligence claim.

In my judgment, the principle contended for by the defendants, the costs of one action cannot be the costs of another action, is not made out. I do not think it is made out by any of the cases that were relied on. In the Wright v. Bennett case it is plain that the Court of Appeal says one must look at the purpose for which the costs were incurred. One never incurs costs in a lower court for the purposes of an appeal, though what occurs may later be used on an appeal. The purpose one must look to is the purpose of the party incurring the costs, not the purpose of the action in which the costs were incurred.

In Department of Health case, the simple point made by counsel for the claimant is correct. There, the order for costs could never survive. The court had purported to award the costs of and incidental to the inquiry. That would never do. One can only award the costs of and incidental to the case in which the costs are ordered, in that case, a debt claim. Counsel for the Claimant suggested that perhaps some, if not all, of the costs of the inquiry could have been regarded as part of and incidental to the debt claim. We will never know that for sure. My instincts tell me that they probably would not have been. But there may be other reasons for that. After all, the action was stayed. There ought to be no or little costs of the action pending that stay.

With regard to the reference to Aiden Shipping Co. Ltd. v. Interbulk Ltd., it is just obvious that with two separate actions involving different people one is not incidental to the other and one is not of the other. They are two separate actions. Similarly with Contractreal. In the use of the words "of and incidental" there "incidental" is to mean subordinate, a subordinate part of. Therefore there is no justification in that action for claiming costs incurred in respect of more substantial proceedings which had not in fact been commenced.

I think the true rule is demonstrated by the decision in the Marchioness case. Costs of an inquest can be of and incidental to other actions. They were held to be so in that case. I think they are so in this case. I note that legal aid in this case was granted only for the purposes of a noting brief, i.e. authority to attend the inquest as an observer. Nevertheless, I hold it was reasonable for the claimants in this case to have sought to play a larger role, as they did, in that inquest. In other words, to make submissions, and to cross-examine witnesses. Of course, that cross-examination would always be under the control of the Coroner. I think it was reasonable for them to have had a full say in the findings of fact made by the Coroner's court.

That concludes that point. I have still got to assess the bill. In assessing the bill I am going to try to nevertheless identify items of costs which I shall describe as "inquest costs".