Following the ruling in the case of R (Adath Yisroel Burial Society and another) v HM Senior Coroner for Inner North London [2018] EWHC 969 in which it was found at judicial review that the “cab-rank rule” approach to burials was unlawful, the defendant coroner was ordered to pay £68,000 on account of costs due to her unreasonable conduct and loss of neutrality.
The general rule, that the unsuccessful party pays the costs of the successful party, is not necessarily applicable to judicial officers such as coroners so it may have come as a surprise to the defendant coroner that she/the Council her area covers had costs to pay.
The claimants’ reasonable costs were ordered to be paid from the 8 March 2018, the date the defendant coroner filed addendum detailed grounds, described in the judgement as a “robust restatement of her position”.
The Divisional Court, took the approach applied in R (on the application of Davies) v Birmingham Deputy Coroner [2004] 3 All ER 543, and held that this date marked the point at which the defendant coroner “ceased to be neutral” and thereafter fairness required that the costs should not fall on the claimants’ shoulders.
No costs were ordered for the period prior to the 8 March 2018 as until that point the defendant had not actively sought to defend her policy and remained neutral, thus the ordinary stance was adopted and the defendant was not liable for those costs. The position changed when the coroner filed the addendum and was “no longer simply giving information to the court”.
By way of background to this case the first claimant, a charitable organisation responsible for managing and facilitating burials of a large proportion of the orthodox Jewish population in Inner North London and the second claimant, a 79 year old orthodox Jewish woman who lived within the administrative area of the defendant successfully brought a claim for judicial review of a policy adopted by the coroner for Inner North London which set out that:
“No death will be prioritised in any way over any other because of the religion of the deceased or family, either by the coroner’s officers or coroners.”
Within both Jewish and Muslim faiths, great importance is placed on a burial taking place as soon as possible after the death. The claimants were successful in their challenge on the grounds that the policy was in breach of Article 9 of the European Convention on Human Rights and Article 14 read with Article 9 and also indirect discrimination contrary to section 19 of the Equality Act 2010.
Perhaps no costs would have been payable by the defendant coroner at all had she have demonstrated neutrality in stance and not failed to reconsider her policy in light of the Chief Coroner’s position, which was that a coroner should be open to representations that a particular case should be treated as a matter of urgency and that proper respect should be given to representations based on religious belief.