Wilton v The Youth Justice Board

On 16 June 2010 I read out my judgment on three preliminary issues which had been argued the previous day (“Campbell I”). The facts and background are set out in paragraphs 4 to 6 thereof and I shall not repeat them here. This further judgment deals with the costs claimed by the Claimant in respect of the attendance of Mr Mark Scott of Bhatt Murphy at the Inquest for days 23 to 30. Once again I heard submissions from Mr Westgate QC, instructed by Bhatt Murphy for the Claimant and from Miss Ayling, instructed by Crown Costs Consultants, for the Youth Justice Board. The respective costs excluding VAT claimed for these days are £ 3,300 (Day 23), £3,300 (24), £3,300 (25), £ 2,850 (26), £ 2,490 (27), £3,150 (28), £ 3,090 (29), £3,150 (30), making a total of £ 24,630.

In submissions prior to Campbell I, there was discussion about the extent to which, if any, the costs of attending the Inquest should be divided as between those incurred in “assisting the Coroner” on the one hand, and those which involved “evidence gathering” for the civil claim on the other: Roach v Home Office [2010] 2 WLR 746 at paragraph 32 gives guidance on this point. The parties have agreed that under the Consent Order dated 11 February 2010, any work claimed in the bill for “assisting the Coroner”, must be separated out and disallowed. What the parties do not agree about is the nature of the work that this description encompasses. Put at its highest, the case for the Defendant is that none of the costs claimed for the final days of the Inquest (specifically days 23 to 30) were incurred for the purpose of the subsequent civil claim. If that be wrong, what was done on those days is divisible, and, in so far as it does not relate to evidence gathering, the work should be disallowed.

The Defendant’s submissions are set out in their response (“the Response”) to a document served by Bhatt Murphy called “the Claimant’s Inquest Schedule”. This Schedule has set out in general terms the work with which Mr Scott was concerned on the disputed days. It is convenient to quote from page 2 of the Response as follows:

“The Defendant submits that the Claimant’s Inquest schedule is helpful for the purpose of separating out those costs specifically relating to assisting the Coroner. Days 23 to day 30 (eight days) do not relate to gathering evidence and specifically relate to the legal arguments, submissions regarding verdicts, questions to go to the jury, ruling of the Coroner, summing-up and the verdict. The Defendant submits that all eight days cannot be construed as being reasonable for the purpose of the civil claim and cannot be considered costs of gathering evidence. The Defendant submits that the coronial proceedings have nothing to do with the apportionment of civil liability for negligence. Rule 42 of the 1984 Rules specifically provide that no verdict shall be framed by an Inquest in such a way as to determine either criminal or civil liability.”

The reference to the 1984 Rules is to the Coroner’s Rules 1984 (SI 1984/552). The Rules continue at paragraph 43 as follows:

“Prevention of Future Deaths

(1)

Where –

(a)

the Coroner is holding an inquest into a person’s death;

(b)

the evidence gives rise to a concern that circumstances creating a risk of other deaths will occur, will continue to exist, in the future; and

(c)

in the Coroner’s opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances, the Coroner may report the circumstances to a person who the Coroner believes may have power to take such action.

(2)

The report under paragraph (1) may not be made until all the evidence has been heard except where a Coroner, having adjourned an inquest under Section 16 or 17A of the 1988 Act, does not resume it.

(3)

The Coroner who intends to make a report under paragraph (1) must announce his intention before the end of the inquest, but failure to do so will not prevent a report being made. –

(a)

must send a copy of the report to;

(i)

the Lord Chancellor …”

In the present case, the Coroner had written to the then Lord Chancellor, Jack Straw MP, pursuant to his duties under rule 43 on 18 July 2007. In Miss Ayling’s submission, what she called “verdict” costs were incurred in relation to the verdict under rule 42 and the prevention of future deaths under rule 43 were incompatible with work being done incidental to a prospective civil claim. Accordingly, it did not meet the test in Re: Gibsons Will Trusts (1981) Ch 179 that in assessing whether work prior to any civil proceedings is recoverable as costs of and incidental to those proceedings, it must be (i) of use and service in the action (ii) relevant to an issue and (iii) attributable to the paying party’s conduct. It followed that matters such as submissions regarding the verdict, questions to go to the jury, closing submissions to the Coroner, the Coroner’s summing up and waiting whilst the jury retired and reached its verdict, fell outside the scope of the costs order. Moreover, being absent from the Inquest for the final eight days would not have prevented Bhatt Murphy from producing a letter of claim for the civil action and the cost of work done simply to persuade the Coroner to reach a particular verdict was not recoverable. In this respect, Miss Ayling relied upon the decision of Master Gordon-Saker in King v Milton Keynes General NHS Trust, 13 May 2004, SCCO when the Master had said this:

“While the verdict reached may have brought a speedy settlement, such work was not done with the purpose of obtaining information or evidence for the proposed claim.”

For these reasons Miss Ayling submitted that none of the work undertaken during the last eight days of the Inquest was recoverable. In the alternative, if there was work done during those days that in principle was recoverable, each item should be examined and divided so that work in the nature of “assisting the coroner” could be separated out and removed from the Claimant’s bill.

For the Claimant, Mr Westgate QC accepted that rule 43 is framed in such a way that the Coroner cannot decide criminal or civil liability. It followed for that reason that the question to ask was whether the work was of use to or would benefit the civil claim. In the present case, the letter before action had been written in terms that had incorporated the verdict and the rule 43 report, and it was unreal to suggest that the verdict was irrelevant to the civil proceedings. It could be and indeed had been relied upon. As such, the verdict costs were capable of being incidental to the civil claim: the linkage was there to join the two.

Mr Westgate did not discount the possibility of items of costs being divided, but in this respect, his primary submission was that the verdict served the civil claim and the costs incurred thereto were recoverable. That said, he accepted that in respect of divisible items in the bill, any element that had increased that item of cost because it related to assisting the Coroner, would be irrecoverable and require separating out of the bill.

The parties have agreed that work falling within the ambit of “evidence gathering” is potentially recoverable and includes hearing the evidence of witnesses, observing their demeanour, considering what they have said, undertaking cross-examination and otherwise obtaining information or evidence for the proposed claim. On the other side of the notional dividing line, work “assisting the Coroner” and not incidental to putative civil proceedings falls outside the scope of the costs order and must be disallowed. How, then, should the Court deal with other work, such as listening to the summing-up, attending on the verdict, etc? Into which category does such work belong?

In Miss Ayling’s submission for the YJB, the observation of McCowan J in R v Birmingham and Solihull Coroner ex p. Cotton [1996] JP123 (DC) is relied upon when the learned Judge said this:

“The purpose of an inquest is to discover the cause of death not to get a negligence claim on its feet.”

In this respect, however, I agree with Mr Westgate’s submission that McCowan J’s observation appears to have been directed to the Coroner rather than at prospective claimants, which is consistent with Rule 42 that the Coroner cannot decide criminal or civil liability. The point which I need to establish is whether there is some “cut-off” point during the Inquest beyond which it can be said that investigative costs incidental to the prospective claim came to an end and that thereafter, all costs fell into the “assisting the Coroner” category and so are irrecoverable between the parties in these proceedings.

In his third witness statement, Mr Scott has described what work was undertaken on days 23 to 30. On day 23, the Coroner had not actually sat and he, Mr Scott, had been involved in disclosure matters, and on work with counsel directed at legal argument on issues to go to the jury. The disclosure exercise continued on days 24 and 25. On day 26, the Coroner gave rulings and the Inquest was adjourned until day 27, when the Inquest had resumed prior to the summing-up. That he had done on days 28 and 29, with the jury retiring on day 30 when the verdict was given.

I propose to deal first with Days 24 and 25 (and 23 in so far as it involved disclosure). In my view, Mr Scott’s work on “disclosure matters” as they have been described, are not suitable for resolution as a preliminary issue: expressed differently, the reasonableness of a claim such as this can only be decided on an item-by-item basis. If the disclosure served the subsequent claim and satisfied the re Gibson criteria, it will be recoverable in principle: if, instead, it “assisted the coroner”, it will not. For that reason, I cannot say on an adjudication of a preliminary issue, that such work is irrecoverable in toto, so Miss Ayling’s broad attack fails but, she is at liberty to renew her submission at the detailed assessment hearing that this work did not serve the claim by reference to individual items in the bill .

In relation to the other work done between Days 23 to 30 inclusive, the Defendant’s case is that nothing related to evidence gathering and accordingly none of the £24,630 costs claimed in the bill for this period can be laid at the door of the YJB. It is said, in particular, that matters such as legal argument, submissions regarding the verdict, questions to go to the jury, the ruling of the Coroner, his summing-up and the verdict itself, all fall outwith the ambit of “evidence gathering” and so are irrecoverable (see the Response page 2). I disagree. In my judgment, it is unreasonable to suppose that at the moment the last witness completes his or her evidence, a guillotine falls and that an interested party’s legal team (such as the Claimant’s here) must then pack its bags and leave Court for good. Several reasons for reaching this conclusion immediately arise; so far as questions to go to the jury are concerned, whilst this is a task for the Coroner, in all likelihood, he will first ask counsel if they have any submissions before actually putting the questions. It follows that as the representatives of interested parties are permitted to make submissions, they will need to be prepared to do so in respect of the questions that are to go to the jury and from which the jurors will reach their verdict. Second, so far as the summing-up is concerned, the Coroner must be legally correct in undertaking this task, lest otherwise his decision will be susceptible to Judicial Review. Whilst I accept it is arguable that making sure he does not fall into error comes within the classification “assisting the Coroner”, I do not consider it can be said that counsel for an interested party such as the Claimant here can have no role in this task. In my opinion, ensuring that the jury reaches a conclusion that was properly obtained, is more likely to be of assistance to a subsequent civil claim, than a verdict that is quashed on judicial review. So far as remaining at the Coroner’s Court during the time that the jury is out is concerned, likewise I do not understand why this should fail as a matter of principle as the Defendant has contended. When the jury goes out, it is not known how long it will take to reach its verdict. It could be a matter of hours, but juries sometimes go out for days, in addition to which they may ask questions during the course of their deliberations which may require input from an interested party’s legal team. So far as the verdict is concerned, I do not agree with the submission that this is likely to be irrelevant to the civil claim. In the present case, a verdict of unlawful killing would in all likelihood be overwhelmingly more helpful in subsequently obtaining an admission of liability in a civil claim, than a finding of accidental death, the Coroner’s decision here. That point is of particular significance in this case in view of the earlier finding by the Police investigation into the deceased’s death that no fault lay with the officers or any other party. It follows in my judgment that the verdict is likely to be relevant to the civil claim, albeit that I also recognise that it is not binding.

All these reasons militate in favour of the Claimant continuing to be represented during the last eight days of the Coroner’s sitting. On the basis that matters can arise until the moment that the jury is discharged, I do not consider that a ruling can be made in this case that it was unreasonable for Mr Scott to remain at the Coroner’s Court until this moment. For these reasons, I am not persuaded that a guillotine should drop at the end of day 22 and that all of Mr Scott’s time thereafter should be disallowed. Accordingly, this issue in principle must be decided in favour of the Claimant.

I agree, however, that there may be overlapping costs that concern both the civil claim and “assisting the coroner”. Where this the case, I do not understand there to be any disagreement between Mr Westgate and Miss Ayling that the Court will need look at each divisible item and that where that item has been increased by the addition of costs relating to “assisting the Coroner”, that component will be separated out and disallowed. But that is an exercise for detailed assessment and cannot be resolved as a preliminary issue.

In the result, I reject the YJB’s submission that it should have no liability for Bhatt Murphy’s costs for days 23 to 30 of the Inquest. I do not expect any attendance by the parties when this judgment is handed down and if either side wishes to apply for permission to appeal, I suggest that submissions are lodged for this purpose within 14 days of 23 December 2010. When the parties are ready, letters indicating availability should be sent to the Court and I will re-list the detailed assessment on a date of mutual convenience.