CORONERS AND COSTS

In R (Adath Yisroel Burial Society & Mrs Ita Cymerman) v HM Senior Coroner for Inner North London [2018] EWHC 1286 (ADMIN)

the Divisional Court of the Queen’s Bench Division considered the incidence of costs of a claim for judicial review against a coroner.

The Queen’s Bench Division pointed out that there appears to be a drafting error in Regulation 17 of the Coroners’ Allowances, Fees and Expenses Regulations 2013, made pursuant to Section 34 of, and Schedule 72 to, the Coroners and Justice Act 2009 as it does not refer to a coroner’s liability for costs.

Both the claimants in this action and the Chief Coroner had written to the court separately, stating that the regulations are defective.

The court said that the point needs to be considered and resolved and that coroners must have certainty about the scope and extent of the indemnity to which they are entitled under the legislation.

Here, the London Borough of Camden had originally indicated that it would not indemnify the coroner in respect of any adverse costs, but it subsequently changed its mind.

The court started with the proposition that it has a discretion on costs pursuant to CPR 44.2, but the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but pointed out that in relation to judicial officers such as coroners, that general rule does not necessarily apply.

 

The court stated that the leading authority on costs against coroners is

R (Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 207; [2004] 1 WLR 2739 

and quoted from the judgment in that case:

 

“[47]  It will be apparent from this judgment that the answers to the questions I posed in para 3 above are: (1) the established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings; (2) the established practice of the courts was to treat an inferior court or tribunal which resisted an application actively by way of argument in such a way that it made itself an active party to the litigation, as if it was such a party, so that in the normal course of things costs would follow the event; (3) if, however, an inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction, procedure, specialist case law and such like, the established practice of the courts was to treat it as a neutral party, so that it would not make an order for costs in its favour or an order for costs against it whatever the outcome of the application; (4) there are, however, a number of important considerations which might tend to make the courts exercise their discretion in a different way today in cases in category (3) above, so that a successful applicant, like Mr Touche, who has to finance his own litigation without external funding, may be fairly compensated out of a source of public funds and not be put to irrecoverable expense in asserting his rights after a coroner, or other inferior tribunal, has gone wrong in law, and [where] there is no other very obvious candidate available to pay his costs.”

The judgment sets out in detail the facts of this matter and the claimants and the Chief Coroner were represented by counsel at the hearing but the defendant coroner appeared as a Litigant in Person.

The claimants argued that they were entitled to their costs of the action on a number of grounds based on Davies as follows:

 

1. The Defendant has not acted neutrally because she has actively sought to defend her policy.
2. ii) The Defendant unreasonably declined to withdraw her policy or sign a consent order.

iii)           The case is distinguishable from Davies because the Defendant in making her policy was not making a judicial decision.

1. iv) It is manifestly unjust that the Claimants should have to bear the costs of bringing and pursuing these proceedings.

 

The judgment deals with all of the arguments for and against, but concluded that the claimant should succeed on two related bases:

 

1. first, the defendant’s failure to reconsider her policy in the light of the Chief Coroner’s intervention is an important consideration when considering where, in fairness, the claimants’ costs should fall within the fourth limb of the case in Davies.

 

1. Secondly, the defendant’s Addendum Detailed Grounds, filed in answer to the Chief Coroner’s detailed grounds, mark the point at which the coroner ceased to be neutral in stance, as examined in the second limb of Davies. From that point on she was advocating the correctness of her policy and no longer simply giving information to the court.

 

For those reasons the court ordered that the defendant should pay the claimants’ reasonable costs from the date she filed her Addendum, with such costs to be the subject of detailed assessment if not agreed.

The court ordered the defendant to pay £68,000 on account of costs.

The court confirmed the general principle that the coroner who remains neutral should not ordinarily be liable for costs.

The court accepted that that itself may be considered to be unfair to a successful claimant and will have to bear their own costs of a successful action.

 

Comment

This is part of a wider issue, and that is in an era where court fees are extremely high, and the Justice Minister has cut fees to reflect the fact that the department was making a profit in many areas, should the parties have to bear their own costs incurred due to mistakes by the judiciary?

 

My view is that when a decision is overturned due to an error of law by the Lower Court, then the state should pay both parties’ costs of that appeal hearing, and any rehearing caused by the case being remitted to the first court again.

Legal costs are too high anyway; they should not be added to by innocent parties having to pay for the faults of the state and its officers.