Background
Mr and Mrs Roach’s son, a heroin addict, died at HM Prison Exeter
on 18 January 2004. He had hanged himself in his cell using
bedsheets. The inquest into his death lasted 14 days
concluding on 27 March 2007. The jury found that Craig Roach was
suffering from the effects of withdrawal from heroin and that
prison staff had not been trained in dealing with prisoners who
were detoxifying from drugs or alcohol. Mr & Mrs Roach were
granted exceptional funding by the Legal Services Commission for
the costs of representation at the inquest.
In the light of the evidence which emerged from the inquest, the
family pursued a civil claim for compensation for breaches of
Article 2, 3 & of the European Convention on Human
Rights. Mr & Mrs Roach entered into a conditional fee agreement
as they were not eligible for public funding.
A letter of claim was sent and proceedings were issued in the
Central London County Court on 22nd June 2006. The Home Office
offered to settle the claim for £10,000 plus costs. This offer was
accepted and incorporated into court order on 3
rd
October 2007.
A detailed assessment of the costs took place on 6 May 2008 before
Senior Costs Judge Hurst.
90% of the bill of costs was for the cost of representation at the
inquest.
Master Hurst accepted that the subject matter of the inquest and
the civil claim were virtually identical but decided that Mr &
Mrs Roach were only entitled to recover 50% of the inquest costs
from the Home Office. This was on the grounds that the role of
legal representatives at an Article 2 inquest had two purposes - to
assist the coroner and to gather evidence necessary for a civil
claim.
Both sides appealed, the Home Office contending that no inquest
costs were recoverable. The appeal was heard before Mr Justice
Davis at the High Court on 3
rd & 4
th
December 2008 together with
Matthews v Home Office.
Judgment was given on 25
th February 2009.
In an 18 page judgment, Mr Justice Davis comprehensively reviewed
all the relevant case law and concluded that the inquest costs were
recoverable subject to the amount being reasonable and
proportionate.
Mr Justice Davis accepted that the approach taken by Clarke J in
Bowbelle (1997)
2 Lloyds reports 196
(and applied in
King v Milton Keynes General NHS Trust 13.5.04
SCCO AGS 04000350) was correct – costs of attendance at
inquests are capable of being recovered as costs incidental to
subsequent civil proceedings. The principles of
re Gibson’s
Settlement Trusts [1981] 1Ch.179 as to whether costs of work
done prior to the commencement of civil proceedings can be
recoverable applied. Those principles are:
- proving of use and service in the action
- relevance to an issue
- attributability to the paying parties’ conduct
He decided that the ‘purpose’ for attending an inquest was not
an appropriate consideration for the question of whether inquest
costs are recoverable and disagreed with Master Hurt’s 50:50
division. Master Hurst held that the subject matter of the inquest
and the civil claim had been virtually identical and made no
finding that parts of the inquest had been of no relevance to the
civil proceedings.
The inquests in the two cases before the court had led to the civil
proceedings being compromised quickly, probably because of the
strength of the evidence which emerged.
The submission of the Home Office that Parliament had decided that
there should be no costs in Coroner’s proceedings and, therefore,
such costs could not be recovered in subsequent proceedings as to
do so would defeat Parliament’s purpose, was rejected on two
grounds:
- Firstly, Parliament had only decided that coroners had no power
to award the costs of an inquest, not that costs could not be
recovered in subsequent proceedings.
- Secondly, S51 Supreme Court Act 1981 allows a court to order
the costs of and incidental to civil proceedings which can include
inquest costs.
The Home Office had conceded in the pleadings and in the lower
court that the Claimants could recover the notional cost of counsel
attending the inquest on a noting brief but not the costs of full
participation. This concession was inconsistent with their proposed
rule that no inquest costs are recoverable.
The judge noted other difficulties with the Home Office stance.
They had conceded that claimants could recover the cost of their
solicitor interviewing witnesses prior to the inquest and obtaining
relevant proofs of their evidence to the inquest subsequently.
However the cheaper and more convenient course of hearing the
evidence at the inquest and assessing its quality by such
attendance was asserted to be unrecoverable and this was
illogical.
Mr Justice Davis concluded that the manner in which the inquest was
funded with exceptional funding from the Legal Services Commission
had no bearing on the recoverability of the costs.
If the Home Office had been successful in their appeal, damages
subsequently recovered for clients in the civil proceedings could
have been extinguished, by the legal aid statutory charge or
because of the liability of claimants to pay their solicitors for
inquest costs under private or CFA funding, thus making the claims
worthless.
This would have had grave implications for claims under the Human
Rights Act following a death in custody where damages are
modest.
The Home Office have indicated that they will not appeal the
decision of Davis J to the Court of Appeal so we can be confident
that recoverability of inquest costs established in
Bowbelle remains settled law.
Susie Labinjoh of Hodge Jones & Allen Solicitors acted for
Mr & Mrs Roach
Counsel for the Claimants is Andrew
Post.