Douglas v Ministry of Justice & Care UK [2018] EWHC B2 (Costs)
There are numerous authorities regarding the recoverability in principle of costs stemming from involvement and attendance at an inquest.
The recent case of Douglas v Ministry of Justice provides insight into the extent to which such costs will be recoverable and qualifications in relation to the same.
Background
The Claimant in this matter was the Mother of an individual who committed suicide while in prison. The deceased was aged 18 at the time of his death.
It was found by the Prison and Probation Ombudsman (PPO), that the Claimant’s death was the result of a series of procedural and institutional failures. As a result, the Claimant instigated a claim for:
‘A declaration and damages for breaches of Articles 2, 3 and 8 of the European Convention of Human Rights, as incorporated by the Human Rights Act 1998, and/or damages for negligence arising from the death of Imran Douglas’
An inquest was to take place into the death of the Claimant’s son. Shortly before the inquest, the Defendants wrote to the Claimant in which they ‘admit full liability on a joint basis’. The correspondence continued that the Defendants ‘welcome the opportunity to explore terms of settlement.’
The inquest took place with the active involvement of the Claimant’s representatives. Following the inquest the Defendants released a letter of apology and on the 7th March 2016 damages were settled in the sum of £13,500.00.
Caselaw – Gibson’s Settlement Trusts [1981] 1 All ER 233
The recoverability of costs relating to an inquest are recoverable in principle, as per Gibson’s Settlement Trust:
‘The work for which the Claimant seeks to recover the costs must have been (a) of use and service in the claim (b) relevant to the matters in issue in the claim; and (c) attributable to the Defendant’s conduct.
Claimant’s Argument
The Claimant argued that the Defendant’s general admission of liability was insufficient for the parties to agree quantum. There is a wide discretion as to the award of damages based on breach of the EHR articles, and without specific admissions, the parties were not in a position to agree quantum until after full details of the Defendants breaches were confirmed at the inquest.
At the time of the inquest, quantum was yet to be established, the nature of the specific breaches were yet to be established and vindication for the Claimant was yet to be secured. ‘All of these would have been undermined without the damning findings of the inquest’, justifying the Claimant’s participation in the same and by extension the Claimant costs.
Defendant’s Argument
The Defendant’s argument was based around their having admitted full liability for the accident prior to the inquest.
As the only outstanding issue at the time of the inquest was therefore quantum and with quantification of the same being possible based on evidence already available to the parties prior to the inquest (namely the PPO investigation), any costs of the inquest were (according to the Defendant) not incidental to the civil claim.
With the Claimant’s costs failing foul of the Gibson test, the costs were unrecoverable from the Defendant.
Decision
Master Leonard concludes that the admission of liability made prior to the inquest was full and unqualified. The issue then boiled down to whether at the time of the inquest quantum was, or was not, the only question left. In the judges’ words:
90 ‘I have no difficulty in accepting that the inquest, as contributed to by the Claimant’s representatives, provided details about those failings additional to those identified in the PPO report. I have had more difficulty in identifying the extent to which, on the facts of this case, it ultimately made, or might have been expected to make, any material difference to the Claimant’s case on quantum, or her right to vindication.’
91 ‘The inquest was able to provide further evidence in relation to the nature and extent of the Defendants’ failures, but given the information already available there does not seem, at the time of the Defendants’ admission of liability, to have been any basis for expecting that anything would emerge from the inquest that would materially change what was likely to be, on the facts of this case, a relatively modest award of damages.’
The learned Master did not accept that quantum could not be dealt with prior to the inquest (as argued by the Claimant) and pointed out that the Defendant was ‘evidently willing to initiate a discussion immediately, but the Claimant was not.’
Nevertheless, Master Leonard did not disallow all of the Claimant’s costs relating to the inquest:
96 ‘…In my view it would be wrong to disallow all time spent at the inquest on that basis. The new evidence of failures by the Defendants that emerged in the course of the inquest may not have added much to the quantum of damages, but it was not irrelevant. In any case one must not use hindsight in applying the Gibson principles. So, for example, the cost of preparing witness evidence will normally be recoverable as part of the cost of a successful claim even if that claim settles before the witness evidence is ever needed.’
The Claimant was therefore entitled to recover costs in principle, but limited to those which would allow the Claimant to present their claim against the Defendants. All work at the inquest relating to other parties would be unrecoverable, as the same would fall foul of the Gibson principles as would any participation in the general procedure or ‘housekeeping’ of the inquest.
Any time which was recoverable in principle as per the Masters’ qualifications would still be subject to reasonableness and proportionality in the usual way.
Points to Note
The three stage test established in Gibson is nearly 40 years old, however it is as applicable today as it ever was. Whenever considering costs it is therefore important that work done does not exceed the scope of the claim against the Defendant(s). Even then, the costs still need to be reasonable and proportionate.
Of course as always, the use of hindsight is to be discouraged when assessing the reasonableness of costs claimed, so decisions made and costs incurred will be assessed based on the information known at the time particular work was undertaken.