Mowlem Plc, R (on the application of) v District of Avon HM Assistant Deputy Coroner & Anor [2005] EWHC 1359 (Admin)

Case No CO/4556/2004

[2005] EWHC 1359 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 13 May 2005

Strand

London WC2

B E F O R E:

MR JUSTICE WILSON

Between

THE QUEEN ON THE APPLICATION OF MOWLEM PLCClaimant

HM ASSISTANT DEPUTY CORONER FOR THE DISTRICT OF AVONDefendant

JENNIFER COXInterested Party

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR ANDREW SHARLAND (counsel, instructed by Hammonds, Manchester) appeared for CLAIMANT

MR RICHARD EATON (solicitor/advocate, instructed by Head of Legal Services, Bristol City Council) appeared for DEFENDANT

MISS LISA STEPHENSON and for judgment, MR DAVID WHITE (counsel) appeared on behalf of the INTERESTED PARTY

J U D G M E N T

[1]MR JUSTICE WILSON: The claimant, Mowlem Plc, applies for a judicial review of parts of the verdict reached at an inquest held by a coroner, sitting with a jury, on 23 and 24 June 2004. The claimant also applies for a review of comments made by the coroner after the delivery of the verdict. I will defer consideration of that second point until I have determined the first.

[2]The defendant is Mr Woodburn, Her Majesty's Assistant Deputy Coroner for the District of Avon, ("the coroner"), who conducted the inquest.

[3]The inquest was into the death of Mr Cox, aged 54, a carpenter employed by the claimant, who died on 7 June 2003 in consequence of an injury which he suffered at work on 23 May 2003.

[4]The verdict was of course recorded in a written inquisition signed by the jurors and then by the coroner. There is no challenge to the court's conclusion, recorded in paragraph 4 of the inquisition, that the death was "an Accident/Misadventure". But there are a number of challenges to other parts of the verdict recorded therein. Under section 11(5)(b)(ii) of the Coroners Act 1988 the inquisition must set out, so far as such particulars have been proved, how, when and where the deceased came by his death. That duty is discharged by completion of paragraph 3 of the inquisition, which requires the insertion of details of the time, place and circumstances at or in which, if the death was caused by injury, that injury was sustained.

[5]The claimant's substantial criticism is of that part of the verdict which addresses the circumstances in which the deceased sustained the fatal injury. In paragraph 3 of the inquisition that part of the verdict is recorded in the words "he fell from a ladder at work".

[6]The coroner concedes that those words were not lawfully included in the inquisition and that I must therefore grant the application to the extent of quashing at least that part of it. The issue between the parties relates to the course which I should take consequent upon that concession. Neither the claimant nor the coroner is keen that I should take what at first sight is the obvious course, namely to quash the entire inquisition and to order that a fresh inquest be held. Supported by the deceased's widow, who understandably has no wish for a second inquest, they each contend that I have power to substitute words for the offending words and that I should exercise it. They do not agree, however, on the words which I should insert into paragraph 3 of the inquisition by way of substitution. The claimant now suggests the words "he stumbled, tripped and/or fell at work". The coroner, however, suggests the words "he fell from a height at work".

[7]On behalf of the claimant Mr Sharland explains that the wording of an inquisition can be influential in any decision whether to prosecute an employer for providing an unsafe system of work and in the management of any such prosecution; and that the claimant is therefore concerned that the wording in this case should be precisely in accordance with law. In this regard Mr Sharland protests that the claimant courts no favours but equally objects to unlawful words of possibly prejudicial effect.

[8]In conceding that the words "he fell from a ladder" in paragraph 4 of the inquisition were there unlawfully included, the coroner discloses a disturbing state of affairs. For, unbeknown to him, those words were typed on to the inquisition by a member of his staff before it was handed to the jury at the time when they retired to consider their verdict. It is convenient for uncontroversial facts to be thus incorporated into the inquisition before it is handed to the jury. But, as the coroner concedes, it is patently improper for matters which are in issue to be thus incorporated. As I will explain, the circumstances in which the deceased was injured were unclear and in issue; and indeed, if the deceased suffered the injury by falling, there was, as is now conceded, no clear evidence that he did so by falling from a ladder rather than directly from an open roof on to a floor. The unlawful completion of paragraph 3 in the coroner's office is likely to have lulled the jury into thinking that the facts recorded therein were not for them to determine and that they had only to insert their conclusion into paragraph 4, which was properly left blank for them and which they duly completed by writing the words "Accident/Misadventure". Upon their return to court they handed the inquisition signed by each of them to the coroner; and in court, at the end of the proceedings, he countersigned it without noticing that paragraph 3 had been completed in type.

[9]On the day when he sustained the injury, the deceased was working for the claimant as part of the much publicised project of restoration and improvement at Bath Spa. On that morning, at the claimant's request, he fitted three grilles on to the outside of ventilation ducts in the roof of the building known as Cross Bath. In order to fit them he had to climb on to the roof of Cross Bath. He fitted the grilles with silicon sealant and, in order to hold them in place while the sealant dried, he sought to fix three wooden sticks against the grilles. At about 4.30 pm on that day the deceased's supervisor, who was concerned that the sticks might have slipped, asked him to return on to the roof to check them. Thereupon the deceased embarked on that task. There was no evidence that thereafter anyone saw him until, some time after 4.45 pm, his supervisor found him sitting on a stone seat in Cross Bath with blood coming from his nose. Although conscious, he could not speak coherently. He was taken by ambulance to hospital where tragically he died 15 days later, namely on 7 June 2003. He had never recovered to the extent at which it would have been possible for him to seek to recount how the accident had occurred.

[10]Professor Love, a consultant neuropathologist, conducted a post mortem on the deceased at the request of the coroner; wrote an autopsy report; and gave oral evidence to the court. From the hospital notes the professor collected a history that the deceased had suffered an unwitnessed fall of approximately ten feet from a ladder at work. Mr Sharland complains, in my view with justification, that it was assumed at an early stage that this was a case of a fall from a ladder; and that this was an assumption not only communicated to Professor Love but later clearly favoured by the coroner himself, notwithstanding substantial emerging doubts about its validity and notwithstanding that it was for the jury to determine, so far as it was proved, how the injury occurred.

[11]At post mortem the professor found the following injuries:(a) abrasions and lacerations, thus visible externally, at the back left side of the deceased's head;

(b) extensive internal bleeding, not reflected externally, at the front left side of the head;

(d) extensive cerebral contusion and brain swelling. The professor's conclusion, obvious and unchallenged, was that the cause of death was injury to the head. Indeed the deceased had no significant injuries other than to the head. The professor wrote in his report:

"The appearances are entirely in keeping with injuries sustained as a result of falling from a ladder and striking the head on a hard surface."

[12]The evidence before the court was that a workman in the position of the deceased would gain access to the ducts on the roof of Cross Bath in four stages:(a) first he would, by ladder ("the first ladder"), climb about 2.5 metres, also described however as about 10 feet, from the floor of Cross Bath to the roof of the locker room;

(b) second he would walk about 12 metres across the locker room roof to the foot of another ladder ("the second ladder");

(d) fourth he would walk across the roof of Cross Bath to the ducts.

[13]In that context there were the following pieces of evidence for the jury, if properly directed, to weigh in the course of their determination as to the circumstances of the accident:(a) When found by the supervisor, the deceased was holding the three sticks which that morning he had applied to the grilles. That was a clear pointer to the likelihood that the accident had happened at a point or points on his way back from the ducts to the floor of Cross Bath.

(b) On the locker room roof the second ladder was found to be lying flat. In that regard the suggestion of one witness was that the deceased had successfully come down the second ladder and had lain it flat.

(c) On the locker room roof were a series of ridges, wrapped in lead, protruding up by about three inches, against which it would be possible to stumble. There were also at least two square stone pillars running up the side of that roof against which, and in particular against the sharp corners of which, it would be possible for a head to fall.

(d) Soon after the deceased was discovered bleeding, his hard plastic helmet was discovered on the locker room roof about four feet from the first ladder. That was clear evidence that the injuries were not sustained, or certainly not only sustained, by a fall from the locker room roof on to the floor of Cross Bath.

(e) The peak of the helmet was found to be cracked. That was further evidence of hard impact to the front of the deceased's head, arguably more likely to have been sustained by a fall forward than a fall downward.

(f) When discovered by the supervisor, the deceased was sitting some yards away from the foot of the first ladder, which was propped in its usual position. There was only a small pool of blood near the foot of that ladder or otherwise visible.

[14]Mr Frain, one of Her Majesty's Inspectors of Health and Safety, prepared a report for the coroner, dated 8 March 2004. He opened his report by saying that it was impossible to determine whether the deceased fell from a height or from standing on a level surface. Then, however, he addressed four alternative hypotheses. He articulated the first as follows:

"[The deceased] finished his task and was returning along the rear of the locker room roof towards the ladder. He tripped over one of the leaded joints on top of the locker room roof and banged the front of his head on the lead roof, losing his safety helmet in the process. He may not have been able to arrest his fall as he had the small sticks that he collected in his hands. Being injured and stunned from this fall [the deceased] climbed down the ladder without incident then passed out whilst at ground level banging the rear of his unprotected head on the stone floor. When consciousness returned he went and sat down by the entrance where [his supervisor] found him."

Mr Frain's comment on that hypothesis was as follows:

"This seems to be the most likely scenario. It is supported by the pathology to some degree, as there is confirmation that there were two separate head injuries and no other significant injuries. Police CSI were unable to add much information because of the passage of time before they saw the scene, but Police officers suggested that the small pool of blood on the poolside was more likely to have been the result of impact from a lower height. The ladder was not disturbed by the accident."

Before commending that hypothesis to the coroner, Mr Frain had, as he implied, checked with Professor Love that it was consistent with the medical evidence. By his letter in reply to Mr Frain the professor confirmed that the injuries to the front and back of the head were the result of impact at each of those two points; that his assumption had been that all the injuries had been sustained in a fall, with perhaps one impact against the ladder and the other against the floor; but that it was entirely possible that one had occurred on the roof and the other on the floor.

[15]Mr Frain's second hypothesis was that, after falling on the roof, the deceased fell from the roof. He considered that less likely because of the small amount of blood on the floor. His third was that, after falling on the roof, the deceased fell partly down the ladder. He considered that less likely because the ladder was not displaced. His fourth was that the deceased simply fell from the locker room roof. He considered that the amount of blood, the fact that the deceased did not fall into the bath, which was full of water, and in particular the presence of the helmet on the roof made this very unlikely.

[16]I must say, with all due respect to the coroner, that, quite apart from the type-written pre-emption of the jury's conclusion as to the circumstances of the accident - for which he must bear ultimate responsibility - his eliciting before them of the evidence relevant thereto was inadequate. At one point in his summing-up to the jury the coroner referred to "the fall from this ladder" as if there was really no issue but that such were the circumstances of the accident. Grave doubt had been cast upon that theory by Mr Frain, who produced a reasoned report consistent with the medical evidence. Yet Mr Frain's report was apparently not put before the jury. And, worse, when the coroner called Mr Frain to give oral evidence, he asked him numerous questions about the manner and timing of his enquiries but only one question as to how the injuries were sustained, to which Mr Frain responded that it was impossible to say and that there could be only theory and opinion. The coroner now says that that answer rendered Mr Frain's evidence of little value; and he implies that it justified him in not extracting from Mr Frain, for the benefit of the jury, his rival hypotheses and comments, as set out in his report. But, in the absence of any witness to the accident, every attempt to reconstruct its likely course in the light of the medical and other evidence could be categorised as only theory and opinion.

[17]In the event, therefore, the only substantial evidence elicited by the coroner as to the circumstances of the accident was that of Professor Love, who, as I have explained at [10] above, inherited the assumption that was apparently to permeate the coroner's own thinking, namely that the deceased had fallen from a height off a ladder. In court the professor agreed with the coroner's leading question that the injuries were consistent with a fall from a height and stated, in a word now stressed by Mr Eaton on behalf of the coroner, that they "indicated" a fall from at least several feet. But counsel who was representing the widow and the solicitor who was representing the claimant each put to the professor the possibility that the accident was triggered by a fall on the roof, the former with a view, so it would appear, to collecting a negative response and the latter with a view to collecting a positive one. In the end the gist of the professor's response was that it was possible that a heavy man (as was the deceased) moving at speed across the roof, tripping and falling forward, perhaps against the corner of a pillar, could suffer the type of injuries sustained to the front of the deceased's head.

[18]I am readily persuaded that within judicial review this court has a residual power to substitute words for words unlawfully included in an inquisition. It derives from the inherent jurisdiction of superior courts and is reflected in Rule 54.19(3) of the Civil Procedure Rules 1998, which provides:

"Where the court considers that there is no purpose to be served in remitting the matter to the decision-maker, it may, subject to any statutory provision, take the decision itself."

But in the commentary upon that paragraph in the White Book 2004 cautionary notes are sounded about the scope of the proper exercise of this power as follows:

"The scope of this power is unclear. Judicial review is primarily concerned with controlling the exercise by public bodies of statutory or other public law powers conferred upon them. The role of the court is to ensure that those bodies do not exercise those powers unlawfully; it is not the role of the court to determine how those powers should be exercised. Normally, therefore, the courts will not be in a position to determine that there is no purpose to be served in remitting the matter to the decision-maker and taking the decision itself. It may be that there will be occasions when it is clear that a public body must take a particular decision and any refusal to do would be Wednesbury unreasonable. It is theoretically possible that, in those cases, the power conferred by CPR, r.54.19(3) can be exercised. In general, however, there would seem to be little scope for this power to be exercised."

[19]In the sphere of judicial review of inquisitions, it is said in the court's Vade-Mecum, namely Jervis on Coroners 12th Edition, at [19.41] that the courts can grant relief which falls short of ordering a new inquest and that they have ordered inaccuracies in the inquisition, for example as to the date of the deceased's death, to be amended, or have deleted a paragraph and directed the coroner, without holding a fresh inquest, to complete it in the light of its judgment. The latter course was taken, for example, in R v Inner South London Coroner ex parte Kendall

[1988] 1 WLR 1186

, in which Simon Brown J (as he then was) said at 1194A that such was consistent with the court's increasing flexibility of response and remedy in the ever-developing field of judicial review.

[20]What, then, are the criteria by which I should decide whether to exercise the power to substitute words in the inquisition and, if so, by which I should identify the words properly to be substituted?

[21]The coroner, by Mr Eaton, submits that, if I can myself on the balance of probabilities broadly determine the circumstances in which the deceased sustained the injuries, I should exercise the power to substitute and should favour words reflective of my determination. It is the coroner's own view, set out in a witness statement, that it is more probable than not that the deceased fell from a height on to the floor of Cross Bath in a mechanism which, as he now accepts, may or may not have involved the first (or any) ladder. He commends his view to me as being on the balance of probabilities favoured by Professor Love and thus asks me to insert the words "he fell from a height at work".

[22]I want to show proper respect for Mr Eaton, who is on any view a brave advocate, but I am driven to reject his argument as unprincipled. It would be an improper usurpation of the role of the jury for me, without even having heard the evidence, to insert into the inquisition my own choice between rival suggestions as to the circumstances in which the accident occurred. I say no more about Mr Eaton's argument other than to add as a postscript that, on my limited understanding of the relevant arguments, I would not, in any event, have agreed with the coroner that the accident probably took the form of a fall from a height.

[23]I thus have to continue my search for the criteria identified in [20] above.

[24]In my view the power to substitute most obviously arises in circumstances in which the court is satisfied not only that the words in the inquisition, as certified, do not accurately convey the determination of the coroner or, as the case may be, of the jury but also that there are other words which do accurately convey it. My attention has been drawn to a decision by Mitting J in R (on the application of Longfield Care Homes Ltd) v HM Coroner for Blackburn,

[2004] EWHC 2467

, 14 October 2004, in which, so it seems to me, my colleague's justification for extensive substitution for the words in paragraph 4 of the inquisition was that he was satisfied that his favoured words accurately reflected the determination of the jury: see [31] and [40] of his judgment.

[25]In my view neither form of words commended to me passes this test. It will already be clear why I am not satisfied that, in the light, for example, of the position of the deceased's helmet, the jury determined that the circumstances of the accident were that he fell from a height. Nor am I satisfied that the form of words suggested by the claimant accurately conveys their determination. The charm of those words, submits Mr Sharland, is that, as Mr Eaton concedes, they encapsulate all live hypotheses, namely a stumble on the roof, a trip on the roof, a fall on the roof and/or (my emphasis) a fall to the floor, whether from the roof or from the ladder or indeed from a standing position upon the floor. But I find myself unable to be positively satisfied that those words accurately reflect the jury's determination. They had a duty, as I have pointed out, to set out, so far as it had been proved, how the deceased came by his death. I cannot exclude the possibility that, if the issue had been properly left open to them, the jury would have found one or other hypothesis proved. If so, the words of the inquisition should have reflected that finding and have thus been more focussed than Mr Sharland's proposed wording.

[26]I hold, however, that the power to substitute words in an inquisition can, albeit with the greatest caution, be exercised in circumstances broader than those identified in paragraph 24. The bottom line, so it seems to me, is that words can be thus substituted if they are words to which the decision-maker could not object as unreflective of his reasonable determination. The form of words suggested by the claimant passes this test. The jury might not have chosen this form of words; but they could not object to it because it covers all rival hypotheses which they could reasonably have favoured. Should I then, in all the circumstances, exercise the power to substitute these words? The main argument against my doing so is that, if instead I were to order a fresh inquest, a more focussed determination of the circumstances of the accident might be entered by the jury in paragraph 3 of the inquisition. On the other hand, however, it might well not be so entered. There was a large body of evidence before the court, including from the police, that it was particularly difficult to determine these circumstances. I cannot ignore the plea of the deceased's widow not to subject the family to a fresh inquest and, although her plea cannot be determinative, it emboldens my conclusion to direct the substitution of the words now commended to me by the claimant for the offending words in paragraph 3 of the inquisition.

[27]The second part of the application relates to comments made by the coroner following the jury's delivery of their verdict. When the jury returned to court, they handed the coroner not only the completed inquisition but a manuscript note which contained a list of five points. The first was "Unsecured ladder", and the second was "Accident book not completed until after [the deceased's] death". It was clear to the coroner that the jury was raising concerns about the safety of the claimant's system of work and about the speed of its investigations into accidents. That led the coroner to make the following comments in court and on the record:

"I do have one or two observations if I might, and whilst these may not bear any immediate connection to the way in which [the deceased] met his death they are indeed matters of some concern and I have to say that I applaud Mowlem for the fact that they have considered the circumstances and are looking to review their systems where they can. But, perhaps they should consider the risk assessments of an individual no matter how experienced working on a roof with an untethered ladder for any period of time where he is working on his own. One wonders also at an internal investigation, which on the one hand finds no evidence as would lead to the circumstances of death, but where we find also that an Accident Book was completed some two weeks after the event. I make those comments with a view to perhaps a tightening of an already robust system, and the problem with systems of course is that they are as good as the human beings who operate within them, and whilst high standards have been set by this company, I trust those who operate the systems will ensure a robust and rigorous compliance with those systems as are required from time to time."

[28]In contending that those comments were made unlawfully and should be declared to be of no effect, the claimant relies on Rule 36 of the Coroners Rules 1984 as follows:

"(1) The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely - (a) who the deceased was; (b) how, when and where the deceased came by his death; (c) the particulars for the time being required by the Registration Acts to be registered concerning the death. (2) Neither the coroner nor the jury shall express any opinion on any other matters."

The claimant also argues that, if a coroner considers that the evidence suggests a need for action to reduce the risk of a further accident in like circumstances, his proper course is set by Rule 43 of the Rules, which provides:

"A coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly."

Thus, according to the claimant, it was open to the coroner to announce that he would report the matter, for example to the Health and Safety Inspectorate, and notwithstanding that the latter had already, by Mr Frain, conducted an investigation.

[29]Mr Eaton has to concede that, in making his comments, the coroner was expressing an opinion on matters other than those specified in Rule 36(1) and thus was in breach of Rule 36(2). He accepts that the comments are of no legal effect. He contends, however - and indeed I accept this particular submission - that the comments of the coroner were couched in cautious terms and were made, as was the jury's note which was their progenitor, with the best of intentions. Mr Eaton proceeds to submit that the grant of a declaration is always in the court's discretion and that the coroner's breach of Rule 36(2) is so trivial as not to attract its exercise.

[30]I take the view that, where the coroner admits that he acted unlawfully, there should be good reason to refrain from declaring him to have done so. Otherwise the court may be considered to have sent a curious message of condonation. I also accept the validity of the claimant's concern that, while the comments remain on the record without declaration of their unlawfulness, they may, like the inquisition itself, influence decisions in relation to the prosecution of the claimant. Furthermore I consider that inherent in the comments was an extra vice beyond their unlawfulness. It was that the coroner made them without affording any opportunity to the claimant, by its solicitor who was present, to make submissions before he did so. The solicitor was unaware of the content of the jury's note and unaware that any such comments were to be made until he heard them articulated by the coroner. That extra dimension of impropriety makes this breach of Rule 36(2) much more than technical and leads me formally to declare that the comments were made unlawfully and are of no effect.

[31]MR SHARLAND: I am very grateful, my Lord. In relation to the remedy I need say nothing on the second matter. In relation to the first matter there were a number of uncontroversial amendments.

[32]MR JUSTICE WILSON: There were. I did not wish to clutter my judgment with minor uncontroversial amendments, and so I intended to invite you, with Mr Eaton, to draft for my associate, a comprehensive list of the amendments and substitutions to the inquisition that I am making.

[33]MR SHARLAND: My Lord, I am very happy to talk to my learned friend. They are set out at paragraph 17 in my skeleton, so it will not take long.

[34]MR JUSTICE WILSON: I know, you now have to import my approval of your new words in respect of paragraph 3. So there is a little bit of work to be done, Mr Sharland.

[35]MR SHARLAND: The further issue is costs. We say we have won on both issues and therefore we are entitled to our costs. At the moment I am just dealing with principle on whether we are or are not entitled to our costs. Now, again I have spoken to my learned friend and I do not think there is anything between us. There is a case from the Court of Appeal that says if a coroner appeared by way of counsel and adopts a neutral position, basically appears as amicus, costs would not be made against them. But in this case I think it is accepted that that is not the role that Mr Eaton has adopted and here he could be treated as any other litigant and therefore costs should be paid.

[36]MR JUSTICE WILSON: Shall I go over to Mr Eaton on that point at this stage, Mr Sharland? Mr Eaton, you are acquainted with the jurisprudence on the award of costs against coroners at the end of proceedings for judicial review. In the light of your acquaintanceship can you resist an order for costs in principle?

[37]MR EATON: In principle, my Lord, no, but I would submit that the costs will be (inaudible) and the reason I say that is the basis on which the claimant has succeeded has only been on the basis of the case put in the skeleton argument. It cannot be said they succeeded on their case which was, until three weeks ago, the way my client had considered the matter, namely that the words that you should be replacing were a head injury at work which, for the reasons I explain, fail to properly address or answer how the question postulated in section 11 in Jameson. So my submission on costs is that in principle I cannot resist because I do not intend that the coroner's role to be that of amicus. I do not resist in principle, but say the problem would be the claimant's costs from the service of the skeleton argument.

[38]MR JUSTICE WILSON: Thank you. Mr Sharland?

[39]MR SHARLAND: My Lord, if I can briefly respond. If my learned friend had reacted to wording in any way other than complete resistance there may be something in this submission. But it is abundantly clear that our new wording made not a jot of difference in relation to his approach to this litigation. He has fought tooth and nail from the beginning to the end. The coroner is a public body. It was perfectly up to them to suggest such wording as you have adopted. They have not done so. They have clung very carefully and completely resisted any suggestion of any other wording. They never suggested an alternative wording that would seek to get around our concern about the fall from the height. They could easily have come up with a wording themselves. They chose not to. My Lord, I do not think I need to flag up the number of faults that you have referred to in the coroner's behaviour. They are many. I probably could add a couple to the already numerous ones that you flagged up which you may or may not accept; but this has been brought about by the coroner's handling of the inquest. It is clear from your judgment that you felt it has not been perfect, his handling, to put it as neutrally and generally as I can. Therefore they are at fault. My clients are not in any way at fault and there is no reason why, as a matter of principle, our costs should not be allowed and we should not get all our costs in this case, subject to issues about assessment and so on, which I will come to once we have dealt with the general principle. Can I just take instructions? I have no others, I am grateful.

[40]MR JUSTICE WILSON: Thank you. Do you want to come back on that, Mr Eaton?

[41]MR EATON: Of course one criticises the coroner -- the coroner at the first opportunity in his letter before action readily accepted that there was the requirement for judicial review - and recognition should be given to that ---

[42]MR JUSTICE WILSON: And took a perfectly extraordinary point, did he not, about Article 2 of the Human Rights Convention?

[43]MR EATON: Yes, well that is not a point that was pursued with any vigour or any further in that letter. In fact it is not entirely inconsistent with Mitting J's remarks on that point in the light of the (inaudible) case.

MR JUSTICE WILSON: I see.

[45]MR EATON: So it is not a totally extraordinary position to adopt, nonetheless one which on reflection was not pursued. but the point of the matter is that I discussed this matter in conference with the coroner and his instructing solicitors at a stage when he had to contemplate the case as it was put in its pleas; and it had been impossible to know. Had it been put (inaudible) scenario at an early stage rather than (inaudible), it may be that the case would have taken a different path. It is impossible to speculate on that. I simply say in general costs principles the court has a broad discretion and I urge you to the view that the right course is to consider the case from the skeleton argument. That is it; there is no further matter.

[46]MR JUSTICE WILSON: I do not find this point entirely easy to resolve. I have favoured the substitution into paragraph 3 of the inquisition of a form of words which is a subtle variant of a form suggested in Mr Sharland's skeleton argument, dated 13 April 2005.

[47]The application for judicial review had been issued on 22 September 2004. Indeed from before the date of issue until Mr Sharland's skeleton was served the coroner was addressing a complaint that paragraph 3 should be substituted with the simple words that the accident was sustained "at work on 23 May 2003". That leads Mr Eaton to submit that the coroner's responsibility in principle for costs should begin only at around the time of the service upon him of Mr Sharland's skeleton argument; and that, in respect of the months prior thereto, the claimant was commending to the court a form of words hopelessly inadequate to merit substitution.

[48]I understand the force of that point. However, I have to look at the likelihood that, had Mr Sharland's revised formulation been proposed to the coroner earlier, any costs would have been saved. Would the claim then have been compromised? It is impossible to give an affirmative answer to that question. When Mr Sharland's skeleton was served, there was no suggestion from the coroner that there was no further need for this hearing. The coroner, whose misconduct of the inquest had precipitated these proceedings, continued with advocacy of a rival form of words which has not found favour with me and with an argument as to the criterion by which this court should survey rival forms of words which I have castigated as wholly unprincipled. I have no reason at all to think that, had the form of words commended by Mr Sharland in the alternative in April been proffered by the claimant earlier, any amount of costs would have been saved. The revised formulation fell on deaf ears and would, if offered earlier, have fallen on deaf ears. Accordingly the failure to make the revised formulation until April has had no causative effect upon the incurring of the costs of this application and I have come to the conclusion that the coroner should pay 100 per cent of the claimant's costs.

[49]MR SHARLAND: Thank you very much, my Lord. Obviously the issue is summary or detailed assessment. That is a matter I spoke to my learned friend about before today and we both agree that the appropriate order, subject to your views, is detailed assessment, if not agreed.

MR JUSTICE WILSON: I will go along with that.

[51]MR SHARLAND: We have the calculations, my Lord, but I think that is a most sensible approach.

MR JUSTICE WILSON: Mr Eaton?

[53]MR EATON: Yes, we could have lots of remarks to make about quantum at this stage, but it is but not a process in this case which one would favour. So detailed assessment would be our favourite.

[54]MR JUSTICE WILSON: I will go along with that. Are there any other matters, Mr Sharland?

[55]MR SHARLAND: No, my Lord, you have dealt with absolutely everything. I will talk to my learned friend and we will briefly draw up the order.

MR JUSTICE WILSON: You will draw up a composite order dealing with everything?

[57]MR SHARLAND: Yes.

[58]MR JUSTICE WILSON: And you will see that Miss Parsonage in the Administrative Court Office has it by Monday?

[59]MR SHARLAND: Yes, my Lord.

[60]MR JUSTICE WILSON: Thank you. Are there any other matters, Mr Eaton?

[61]MR EATON: My instructions are to seek permission to appeal, though I rather anticipate what your reply will be. We will listen and reflect upon your judgment, but those are my instructions; so I ask.

MR JUSTICE WILSON: What would be the basis of the appeal?

[63]MR EATON: The ground accepted in your judgment, the scope of the court's power to substitute words is unclear, and that a different tribunal may come to a different conclusion on its effects.

[64]MR JUSTICE WILSON: But I have held that there is scope in this case to make substitution; and so, having wrestled with the problem, I have reached the conclusion which you as well as Mr Sharland commended to me. So where is that point going to get, you Mr Eaton?

[65]MR EATON: I do not know at this stage (inaudible) to assess the merits of the point, merely to carry out my instructions, which is I wish to appeal. But as I indicated we would reflect on the terms of your judgment.

[66]MR JUSTICE WILSON: Thank you. Subject to the better view of the Court of Appeal, the proposed appeal by the coroner has no prospect of success whatever. I refuse the application for permission. Is there anything else, Mr Eaton?

[67]MR EATON: No, my Lord.

MR JUSTICE WILSON: Mr White?

[69]MR WHITE: My Lord, yes. I apologise for the fact I had not sought to raise the matter with my learned friend for the coroner earlier, but I also seek our costs of attending this hearing. Our costs are extremely modest, simply costs of counsel's attendance yesterday by Ms Stephenson and my attendance today. I say it was appropriate for us to attend this hearing for two reasons. Firstly, Ms Stephenson did appear at the original inquest. I do not know whether she was called upon to make any comments, but she obviously was here if she had been called upon. Secondly, clearly the family had an interest in the suggestion that there may be a fresh inquest. The family are strongly opposed to that suggestion. So my Lord, for those reasons I suggest it was appropriate for us to attended this judicial review hearing and I seek our extremely modest costs to be paid by the coroner. I am quite happy to say the costs we seek is simply £600 plus VAT, suitable for summary assessment by you today.

[70]MR JUSTICE WILSON: Thank you. Mr Eaton?

[71]MR EATON: It came as a surprise to me yesterday to see Ms Stephenson in court. We had no indication that the family were taking part in these proceedings. I believe those were served on interested parties, but then took no action to file a document. So I struggle to see the basis for which they can consider that the coroner should reasonably pay their costs.

[72]MR JUSTICE WILSON: Thank you. Mr White, is there anything you want to come back on?

[73]MR WHITE: My Lord, no, I have made any submissions.

[74]MR JUSTICE WILSON: It would be a hard-hearted judge who would not have the deepest sympathy for the widow and who would not wish to see her indemnified in respect of legal costs arising out of the tragedy. But it would not be a proper exercise of discretion to condemn the coroner to pay the widow's costs of an attendance yesterday by counsel, and, with the greatest respect to him and thanks to him for coming, the attendance of Mr White today. Miss Stephenson took no active part in the proceedings. She was here holding a watching brief; and I have to say that yesterday I wondered why it had been considered appropriate for the widow to be represented on that basis. Mr White points out that it was important for the court to receive the information that the widow opposed any suggestion of a fresh inquest. That opposition could have been communicated by letter from the Interested Party to the court, copied to the active participants in the proceeding, or by letter to one or other or both of the active parties. It is not even as if the ground for this application for costs had been laid by forewarning the coroner that there would be an attendance by counsel at this hearing and that at the end of it there might be an application for costs. Had that ground been laid, the coroner might have initiated a dialogue with the widow's lawyers which would have given sufficient comfort to the widow by her lawyers to enable her to conclude that she had no need to have counsel present on the watching brief.

[75]With regret, I refuse the application by the widow for an order for costs against the coroner.