King v Milton Keynes General NHS Trust [2004] EWHC 9007 (Costs)

Case No MK 303948; SCCO Ref: AGS 0400350

[2004] EWHC 9007 (TCC)

IN THE HIGH COURT OF JUSTICE

SUPREME COURT COSTS OFFICE

Venue Clifford’s Inn, Fetter Lane

London, EC4A 1DQ

Date 13 th May 2004

Before

MASTER GORDON-SAKER

Between

JACQUELINE KINGClaimant

MILTON KEYNES GENERAL NHS TRUSTDefendant

Mr Andrew Post (instructed by Messrs Osborne Morris & Morgan) for Claimant

Mr Benjamin Williams (instructed by Messrs Barlow Lyde & Gilbert) for Defendant

Hearing Hearing date : 13 th May 2004

Judgment

Master Gordon-Saker

[1]On 20th August 2002 Mr Robert Gadd was admitted to the Milton Keynes General Hospital as an in patient for an angioplasty of the right external iliac artery. That night he developed a haemorrhage. The following day he suffered a cardiac arrest and died.

[2]Mr Gadd’s family consulted Mr Osborne a partner in the firm of Messrs Osborne Morris & Morgan, solicitors, of Leighton Buzzard. They were concerned about the level of care that Mr Gadd had received in hospital; for, as far as they were aware, apart from the problems with the right leg he had been in good health.

[3]Mr Gadd was of an age when he had no financial dependants. Accordingly any claim arising from his death would be limited to the statutory claim for damages for bereavement, fixed by Parliament at £10,000, and the funeral expenses.

[4]As one would expect, Mr Osborne set about obtaining the deceased’s medical records, considered what may have gone wrong and sought an expert opinion. That opinion was sought from Dr Bell, a consultant in intensive care and anaesthesia.

[5]An inquest was convened on 8th November 2002 and adjourned to 6th and 7th March 2003. In the intervening period Mr Osborne urged the Coroner to call Dr Bell to give evidence. He also reminded the coroner of the possibility of a verdict of "systems neglect", following the decision of the House of Lords in R (Middleton) v West Somerset Coroner

[2004] 2WLR 800

[6]Mr Osborne attended the inquest on behalf of the estate. I am told that he participated fully, asking questions of the witnesses and making submissions - both orally and in writing - as to the law (submissions on the facts not being permitted). The Coroner acceded to Mr Osborne’s invitation and called Dr Bell to give evidence. He also called an expert witness proposed by the hospital NHS trust.

[7]Having considered the evidence and the submissions on the law the Coroner recorded a verdict of systems neglect.

[8]On 11th March 2003, 4 days after the conclusion of the inquest Mr Osborne wrote to the NHS trust offering to settle the estate’s claim for £10,000. That offer was accepted without delay by the trust in a letter dated 13th March 2003. The trust’s reply began:

"I have now considered the evidence presented at Inquest and your offer …" and concluded: "

In respect of your legal costs in investigating this claim, we will consider your legal costs in the usual manner, to be assessed if not agreed."

[9]The estate’s costs were not agreed and eventually costs-only proceedings were commenced in the Milton Keynes County Court. Despite the opacity of the trust’s position in relation to costs (as recited in the preceding paragraph), no point was taken on its liability for costs and an order was made that the Defendant pay the Claimant’s costs to be assessed.

[10]The bill served by the Claimant seeks costs of £15,060.52 including value added tax. I am told that over 90 per cent of those costs relate to attendance and representation at the inquest.

[11]At the Defendant’s request the detailed assessment was transferred to the Supreme Court Costs Office. After transfer, by reason of the amount of the bill, the matter was listed for assessment by a Costs Officer. At the Defendant’s request the hearing was adjourned to a Costs Judge.

The Defendant’s position

[12]Mr Williams, who represented the Defendant with great eloquence, told me that the National Health Service is concerned about the number of cases in which Claimants in fatal clinical negligence cases seek to recover (and are allowed), as part of the costs of the claim, the - often significant - costs of attendance and representation at an inquest.

[13]Mr Williams submitted: (1). That there is no jurisdiction to allow "inquest costs" within the costs of subsequent civil proceedings. This he derived from the proposition that costs incurred in one set of proceedings cannot be recovered in another. (2). In the alternative, that inquest costs should not be allowed in this case.

Direct authorities on jurisdiction

[14]Both counsel drew my attention to the decision of Master Hurst, the Senior Costs Judge, and the judgment of Clarke J. in The Bowbelle noted at

[1997] 2 Lloyd’s Rep 196

(QBD). It will of course be remembered that this case arose out of a collision on the Thames with the loss of 51 lives. Although liability had been admitted, the steering committee representing the Claimants chose to attend and participate in the inquest. Counsel was instructed and he cross-examined the pathologists called in the case of each of the deceased. Master Hurst decided [at p.62 of the transcript of his judgment]:

"… in relation to pre-death pain and suffering it was reasonable for the Steering Committee to coordinate the Claimants, to instruct Counsel and to attend the inquest."

On appeal from that decision, Clarke J. stated [at p.47 of the transcript of his judgment]:

"Master Hurst held that it was reasonable for the steering committee to co-ordinate the Claimants, to instruct counsel and to attend the inquest. I agree. That evidence was potentially relevant to the loss of life claims. It follows that, unless there are particular costs which are not fairly referable to the attendance at the inquest for that purpose, reasonable costs of attending the inquest are in my judgment recoverable."

[15]Mr Williams, in the best traditions of the Bar, drew my attention to a decision in another case in which inquest costs were allowed: Stewart & Howard v Medway NHS Trust [Master O’Hare; unreported; 6th April 2004]. Mr Williams, representing the defendant in that case, had sought to argue that the costs of one set of proceedings cannot be "of and incidental" to the costs of another. Mr Williams relied on the same decisions to which he has taken me - Wright v Bennett, DHSS v Envoy Farmers Ltd, Aiden Bulk Shipping Co Ltd v Interbulk Ltd and Contractreal Ltd v Davies. However Master O’Hare was not persuaded and decided (according to Mr Williams’ note) that:

"… The Bowbelle states the true rule. The costs of an inquest can be of and incidental to the costs of negligence proceedings, and they were in this case. I note that legal aid was only for a noting brief, but it was reasonable for the Claimant to play a larger role, to examine witnesses, and to have a full say in the findings made by the coronial court."

[16]I am not bound by the decisions of Master Hurst and Master O’Hare, but am I bound by the decision of Clarke J. in The Bowbelle? As it would appear that the want of jurisdiction argument which the Defendant wishes to pursue now was not raised before either Master Hurst or Clarke J., I can consider that argument afresh: R (Kadhim) v Brent Housing Board

[2001] QB 955

(CA).

The nature of inquests

[17]The function of an inquest is to determine the identity of the deceased and how, when and where the deceased came by his death: Coroners’ Rules 1984 rule 36. "How" now connotes "by what means and in what circumstances": R (Middleton) v West Somerset Coroner (supra). The nature of the process is inquisitorial rather than adversarial. It is for the Coroner to decide which witnesses to call and, unless he decides otherwise, it is for the Coroner to examine each witness first. It is not the purpose of an inquest to determine any question of civil liability: Coroners’ Rules 1984 rule 42. Nor is it "the function of a coroner’s inquest to provide a forum for attempts to gather evidence for future or pending criminal or civil proceedings": R v Poplar Coroner ex p Thomas

[1993] QB 610

(CA) per Dillon LJ at 629G.

The no jurisdiction argument

[18]It is worthy of note that Parliament has not furnished Coroners with the power to award costs. (Although once the inquest is over and the interested persons become parties in proceedings to review the decision of the coroner, there is a power to award the costs of those review proceedings: s.13 Coroners Act 1988.)

[19]However, I cannot agree with Mr Williams’ submission that this makes it "unthinkable" for a court in other proceedings to award the costs of representation at an inquest. I cannot follow the logic of that argument. Having regard to the inquisitorial nature of the process, it is not difficult to discern why Parliament intended that one interested person should not have to pay the costs of another interested person. There are no "parties" to an inquest. But in my view the want of coronial power to award costs cannot of itself deprive a court in subsequent proceedings of the power to award a party in those proceedings the costs of attending an inquest if those costs are "incidental to" the costs of the subsequent proceedings within the meaning of section 51(1) Supreme Court Act 1981. The want of statutory jurisdiction in one forum cannot negate a statutory jurisdiction expressly granted in another forum.

[20]In my judgment where, as here, a party in subsequent civil proceedings seeks to recover the costs that he has incurred in attending and being represented at an earlier inquest, he is not seeking to recover the "costs of the inquest". Rather he is seeking to recover the costs "of and incidental" to the subsequent proceedings. If the costs of attending the inquest were incidental to the subsequent proceedings then it seems to me that they are recoverable, provided that they were reasonably incurred, reasonable in amount and proportionate.

[21]The logic of the distinction between a claim for the costs of the inquest per se and a claim for the costs of attending the inquest as costs incidental to subsequent proceedings can I think be illustrated in this way. As was conceded in the course of argument before me, the Defendant would face some difficulty in contending that in an appropriate case a party could not recover in subsequent proceedings the cost of a lawyer attending an inquest to take a note of the evidence. (In some cases a transcript might suffice, but in other cases it may be of importance to observe the demeanour, credibility and conviction of the witnesses.) The cost of a noting brief would be incidental to those subsequent proceedings and would not form part of the "costs of the inquest". The purpose of the noting brief is to obtain information and evidence for the subsequent proceedings; and it would have to be justified at assessment in those subsequent proceedings on that basis. But what if the lawyer attending the inquest not only took a note, but also asked questions? Does that transform the costs of his attendance from costs incidental to the subsequent proceedings to costs of the inquest? I think that the answer must be no, if the purpose - or at least a material purpose - of asking the questions is to obtain information and evidence for the subsequent proceedings.

[22]Mr Post, who appeared for the Claimant, submitted that inquests are not "proceedings" and therefore fell outwith the principle that Mr Williams was seeking to press. In my view that is a difficult argument. "Proceedings" covers a variety of human activity. It can describe aspects of life outside the Courts: for example, proceedings before committees. Even within the realms of the law, it can extend beyond litigation. For example, section 51(4) of the Supreme Court Act 1981 provides that "proceedings" for the purposes of the costs jurisdiction "includes the administration of estates and trusts". For my part it would be inappropriate to deny a Coroner’s inquest the epithet "proceedings" merely because there is no lis between those represented, or indeed because there are no "parties" as such.

[23]Mr Williams referred me to a number of authorities in support of the proposition that, as a matter of principle, there is no jurisdiction to award the costs of one set of proceedings in another set of proceedings.

[24]In Wright v Bennett

[1948] 1 KB 601

the costs of supplying what we would now call a trial bundle to counsel instructed to attend trial on a noting brief were disallowed on taxation of the trial costs. Junior counsel, who had since taken silk, was instructed as the leader in the Court of Appeal and counsel who had held the noting brief was promoted to his junior. (Incidentally both went on to greater things.) Both were provided with the bundles they had at trial, the costs of which had been incurred before the appeal proceedings commenced. The Court of Appeal held that the costs of providing the bundles were not costs "incidental" to the proceedings in the Court of Appeal and so were not recoverable on taxation of the Court of Appeal costs. Rather they were costs of the trial and the practice then was not to allow the costs of providing a complete set of documents to counsel who held only a noting brief.

[25]In DHSS v Envoy Farmers Ltd

[1976] 1 WLR 1018

(QBD) a Master in the Queen’s Bench Division referred the question of whether the defendant was liable to pay national insurance contributions for determination by the Secretary of State pursuant to section 97(2) of the National Insurance Act 1965. The Secretary of State, after an inquiry, held that the defendant was not liable. The Master then dismissed the action with costs "to include the costs of and incidental to the inquiry". On appeal, Jupp J. held that the costs of the inquiry before the Secretary of State were not "incidental to the court proceedings". Rather they were "incidental to the proceedings before the Secretary of State", which proceedings "were forced upon the parties by the lack of jurisdiction in the court to deal with the matter of contention". Accordingly the Master had no power to make an order for "the costs of and incidental to the inquiry".

[26]In Aiden Bulk Shipping Co Ltd v Interbulk Ltd

[1985] 1 WLR 1222

(CA);

[1986] AC 965

(HL) the question arose as to whether the costs of proceedings between charterers and sub-charterers could be regarded as costs incidental to proceedings between the owners and the charterers. Lord Goff of Chieveley could not "accept that the word ‘incidental’ can be stretched that far" [at p.981].

[27]Finally, in Contractreal Ltd v Davies

[2001] EWCA Civ 928

the Court of Appeal held that the costs of proposed proceedings for the recovery of rent could not be recovered as costs incidental to proceedings for the recovery of service charges. Having reviewed the authorities, including Wright v Bennett, DHSS v Envoy Farmers Ltd and Aiden Shipping v Interbulk Ltd, Arden LJ said (at paragraph 41):

"So those authorities show that the expression "of and incidental to" is a time-hallowed phrase in the context of costs and that it has received a limited meaning, and in particular that the words "incidental to" have been treated as denoting some subordinate costs to the costs of the action."

(emphasis added)

[28]In each of these cases the costs were disallowed because they were not "incidental to" the proceedings before the court. I do not read any of these decisions as identifying a principle that the costs of one set of proceedings cannot be recovered as costs "incidental to" another set of proceedings if they are in fact "incidental to" those proceedings. 29 It seems to me that the costs of attending an inquest (and asking questions) can be recoverable as costs incurred in the subsequent proceedings if the purpose - or a material purpose - of attending is to obtain evidence for the subsequent proceedings.

[30]The costs of attending the inquiry in the Envoy Farmers case were not incurred for the purpose of the Queen’s Bench proceedings. The costs incurred in the proposed rent action in the Contractreal case were not incurred for the purpose of the service charge action. Thus they were not "incidental" to or, in the words of Arden LJ in Contractreal, "subordinate to" the actions in which a right to costs had arisen.

[31]Accordingly in my judgment the court, when assessing the costs of civil proceedings, does have jurisdiction to award the costs of attendance at an inquest if a material purpose of that attendance is to obtain information or evidence for use in the civil proceedings; subject of course to the litmus tests of reasonableness and proportionality. I agree with Master O’Hare that The Bowbelle states the true rule.

Recovery in the present case

[32]Having regard to the importance of this matter to the family of the deceased, it was both reasonable and proportionate for Mr Osborne to attend the inquest to take notes and to question the witnesses. I am satisfied that the principal purpose of that was to obtain information and evidence for the proposed claim for civil damages by the estate.

[33]However the cost of work done to persuade the Coroner to reach a particular verdict is not, in my view, recoverable. While the verdict reached may have brought a speedy settlement, such work was not done with the purpose of obtaining information or evidence for the proposed claim.

[34]Nor is the cost of adducing the evidence of Dr Bell recoverable. As Mr Williams put it, the cost of calling Dr Bell "was not the cost of eliciting information from the inquest, but adducing evidence to it". It seems to me that the cost of obtaining a report from Dr Bell on liability and causation should be recoverable in principle. But the costs of Dr Bell’s attendance at the inquest to give evidence should not be recoverable.

The Human Rights Act

[35]Mr Post sought to argue that to deny the estate the full costs of representation at the inquest would be a denial of their rights under articles 2 and 6 of the European Convention on Human Rights.

[36]It seems to me that the immediate and fatal difficulty of that argument is that the estate was represented fully at the inquest. The estate was able to participate in the investigation of Mr Gadd’s death. The jeopardy of not recovering all of their costs on detailed assessment is not, in my judgment, a fetter on their rights under the Convention.