COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE LONGMORE
SIR MARTIN NOURSE
| The Queen on the application of
CHRISTINE DAVIES (No 2)
|- and –
|HM DEPUTY CORONER FOR BIRMINGHAM
Richard M Barraclough QC (instructed by Solicitor, Birmingham City Council) for the Respondent
Hearing dates : 2nd December 2003 and 14th January 2004
Crown Copyright ©
Lord Justice Brooke :
(i) What is the established practice of the courts when considering whether to make an order for costs against an inferior court or tribunal which takes no part in the proceedings (except, in the case of justices, to exercise their statutory right to file an affidavit with the court in response to the application)?
(ii) What is the established practice of the courts when considering whether to make an order for costs against (or in favour of) an inferior court or tribunal which resists an application actively by way of argument in the proceedings in such a way that it makes itself an active party to the litigation?
(iii) Did the courts adopt an alternative established practice in those cases in which the inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction and procedure and such like but did not make itself an active party to the litigation?
(iv) Whatever the answers to the first three questions, are there any contemporary considerations (including the coming into force of the Civil Procedure Rules ("CPR")) which should tend to make the courts exercise their discretion as to costs in these cases in a different way from the way in which it was regularly exercised in the past?
"The granting of costs when a rule is made absolute for a certiorari is contrary to the usual practice: see Gray on Costs p 466 where it is said: 'As there is no provision (in the statute 5 Geo 2, c 19) for the payment of costs where the order or other proceedings is quashed, neither party is in that case entitled to costs'."
"It is the rarest thing for this court to give costs against justices. The only case is when justices have done something which calls for strong disapproval from this court. In the present case the justices made a bona fide mistake. If the present applicant had appeared, or had instructed an advocate to appear for him before the justices, the difficulty would not have arisen because the attention of the justices would have been called to the mistake at the time."
"Lord Goddard CJ: In cases where justices appear and oppose, costs are sometimes given against them. They can file an affidavit, and if they only file an affidavit and do not appear, we do not give costs against them. In this case, however, the tribunal has appeared and made itself a party to this lis.
JHL Royle for the tribunal. That is so, my Lord, but in unreported cases the principle has been laid down that there must be perverseness on the part of the tribunal. It is submitted that there has been no perverseness here.
[Peter] Lewis [(for the landlord)]: My friend need not have been instructed to appear here. The tribunal might have read our affidavit and not opposed our application.
Lord Goddard: We decide this case on the ground that the landlord had to come here at considerable expense to herself, to have the decision of the tribunal quashed, and the tribunal have appeared by counsel and have disputed her right to have an order for certiorari. On the whole, as the tribunal have appeared here and contested the case, we think that the landlord ought to have her costs. … If there had been no appearance by the tribunal, of course we should not have given costs in this case."
"If the justices appear in the Divisional Court they make themselves parties to the lis. They take the risk of being ordered to pay costs, and they are entitled to receive costs if they succeed in defeating the application. I have been trying to remind justices all over the country, not only in court, but in addresses I have given to them, of their rights under the Review of Justices' Decisions Act, 1872. That Act was passed for the very purpose of allowing justices, against whom certiorari or mandamus was moved, to put in affidavits (on which they do not have to pay any stamp duty) giving their reasons, so that the court could decide the case on the affidavits; but if justices insist on instructing counsel to come before the court and argue the case, they are making themselves parties to a lis and will have to pay costs. At one time this court very rarely ordered costs, and I think the reason was that the Act of 1872 was overlooked; but for at least three years now I have been trying to remind justices of the presence of this Act on the Statute Book, and if they are not content with exercising the power Parliament has given them, but insist on appearing and arguing the case, they will have to pay costs if they lose. The justices in the present case have made themselves parties before this court and opposed the application, and the applicant is entitled to costs against them."
"So far as costs against the justices are concerned, it has been the practice not to grant costs against justices or tribunals merely because they have made a mistake in law but only if they have acted improperly, that is to say, perversely or with some disregard for the elementary principles which every court ought to obey, and even then only if it was a flagrant instance."
"As is well known, it is very rare that this court makes any award in regard to costs on an application for one of the prerogative orders, unless the other party has appeared and contested the application. [Counsel for the applicants] has, however, pointed out in the present case that [the respondents], no doubt under a bona fide misconception as to their rights under the Licensing Acts, succeeded in persuading the magistrates to adopt the same misconception and have fought this case, as it were, up to 14 December when they wrote saying they were no longer contesting the application. There is a precedent for making an award of costs in such a case: see R v Birmingham Union Guardians (1878) 44 LJMC 48."
The court therefore ordered the respondents to pay the applicants' costs up to 4th December (by which time, it appears from counsel's argument as reported at  2 All ER 270, 272, the applicants' briefs had been delivered.)
"It does not matter to the tenant (who is legally aided) whether the costs come out of one fund or another, but so that we should not be making a precedent I do not think we should give costs against the tribunal. We never give costs unless they act improperly."
"But the court has ample power to permit the tribunal to appear and be heard in appropriate matters. Where, as in the present appeal, issues of general principle as to jurisdiction and procedure are raised, and the tribunal has relevant material to put before the court, it is obviously appropriate for the tribunal to appear and be heard."
"To take yet another example, it is relatively commonplace for a party who is the victim of a misjudgment by an inferior court or tribunal to have to seek relief by an application for judicial review in circumstances where the Divisional Court cannot hold another party or the inferior tribunal itself liable in costs and there is no power to award costs from public funds."
"But that is not a sufficient ground to order him to pay costs. The limited circumstances in which an inferior tribunal, such as magistrates or an arbitrator, should be ordered to pay the costs of an appeal from its decision are well known … [W]e do not consider that it is a case for such an order."
"Mr Simon Brown [who appeared as amicus curiae] … submitted that it is singularly unusual for any order for costs to be made against [a public judicial body in the absence of any misconduct on its part, even if that body appears at the proceedings to resist the application. Where the body does not appear at the proceedings to resist the application … then in Mr Simon Brown's experience, he had never known of an order for costs being made against the judicial body in question in the absence of misconduct." [Emphasis added)
Webster J added that Mr Brown's understanding of the practice accorded with his own. No doubt he had in mind the dictum of Lord Goddard 30 years earlier, in a case in which a tribunal had been represented (see para 21 above).
"Your Lordships will be very familiar with the general proposition which has been applied in such cases before, Calvi [in which the coroner had been ordered to pay half the costs] notwithstanding. Coroners are in a very similar position to all those public bodies, such as benches of magistrates and so forth. If the body appears and takes part and disputes the entitlement of the applicant to the remedy sought, then the body is at risk on costs, subject to the further qualification that the conduct of the body or person calls for serious comment by the court, serious disapproval by the court. Anxious consideration was given, first of all, as to whether the coroner should ever appear in these proceedings. I can tell your Lordships the reason why he appears. It is because it became abundantly clear that the transcript was going to be defective and that one would have to try to assist the court by providing additional material. That is what we have done and I hope it has been of some assistance, not only to the court but to my learned friend. Secondly, there was the problem, which was not just a problem in relation to this inquest but in relation to future inquests, in relation to rule 42, the standard of proof. That is clearly set out in the coroner's first affidavit. Notwithstanding the passages read out by my learned friend, it has always been the intention of the coroner to take a neutral line. It has been done before. It is right and proper that the coroner should, in these circumstances, [not be ordered to pay the costs].
"If an order for costs was made against this coroner … it would be no reflection upon him. It is equally wrong of course that a number of men have had to come here to have this inquisition quashed and have to pay for it. In vehicles of investigation of this kind when they go wrong the public should pay, should they not?
We will not make an order for costs against the coroner or a charge on the legal aid fund, but we regard the situation as unsatisfactory: that is to say, save by going to the legal aid fund or going to a local authority, who may or may not be behind the coroner, parties who have had to come and successfully come to upset an inquisition have to pay their own way. That is the position here. Regretfully we have to say that is how it must stand."
Today, of course, the local authority is bound to indemnify the coroner (see para 2 above).
(1) There was some evidence that the coroner had behaved "improperly";
(2) He defended his decision in court and entered the "lis";
(3) The applicants would have to pay a significant amount of costs themselves if the costs order was not made against the coroner.
(1) Although it was not a case which called for strong disapproval of the coroner's actions, the court had attached some measure of blame to him;
(2) More importantly, he had sought to defeat the challenge to his decisions, and was certainly not represented in the role of amicus curiae, or anything of that nature. He would no doubt have been seeking his costs and would have been entitled to them if he had won;
(3) The applicant was not legally aided;
(4) The court was unable to recognise any principle that said that in these circumstances some special protection should be give to the coroner.
(1) If a coroner not only filed an affidavit but also appeared and contested the making of an adverse order in an inter partes adversarial mode, then he or she was at risk as to costs;
(2) If on the other hand, the coroner, as was fitting for somebody holding judicial office, swore an affidavit to assist the court and then appeared in court, more in the role of an amicus rather than as a contesting party, then the court was likely to follow the normal rule set out in Jervis and make no order as to costs provided that it did not express strong disapproval of his or her conduct.
(i) Simon Brown LJ could find no basis in earlier authority for the suggested distinction I made in relation to the coroner's two possible roles when he appeared in court;
(ii) It appeared to him difficult in practice to apply the distinction, because both roles postulated that he would be resisting the challenge and arguing the relevant law;
(iii) Amici curiae played different roles according to the requirements for their assistance;
(iv) It was not easy to determine what role the coroner had played in the case of Touche, particularly as he appealed after losing at first instance: an amicus does not (and cannot) appeal;
(v) If the coroner had won in the court below, he would certainly have asked for and, no doubt, been awarded his costs;
(vi) Although the court was greatly assisted by the coroner not merely swearing an affidavit but also appearing to argue the case, particularly as it raised a true point of law of general application, it seemed hard on the applicant that the more important the point, the less likely he would be to recover his costs.
(1) It would be a pity if courts were deprived of the assistance of coroners if they were regularly to be condemned in costs if they lost, but it would always be open to the court to ask for an amicus, and at least then an applicant's position as to costs would be fair: he would simply have to bear his own costs irrespective of the outcome (para 55);
(2) The response to the argument that the applicant's costs at the first instance hearing were probably very little greater than if the coroner had chosen not to be represented was that it was an anomaly whereby a judicial officer could generally exempt himself from any costs liability even though his decision was found unlawful by choosing not to appear, and this anomaly ought not readily to be extended (para 56);
(3) The language of section 13 of the Coroners Act 1988 gave the court an unfettered discretion to "order the coroner concerned to pay such costs of and incidental to the application as to the court may appear just", and there was no sufficient reason to subject the exercise of this discretion to limitations as rigorous as those suggested by ex p Hay (para 57);
(4) There was no question of the coroner personally having to pay the applicant's costs, and in the result, given that Parliament had chosen not to heed repeated pleas by the court that there be power in this sort of case to order costs out of public funds, the Divisional Court's decision, made per incuriam the decision in ex p Hay, would be affirmed (para 59).
(i) The codifying of the costs rules in the CPR;
(ii) The Government's continuing unwillingness to permit the courts to make an order that an applicant's costs be borne by central funds in an appropriate case;
(iii) Budgetary pressures which make public bodies (including judicial bodies) more prone to instruct their advocate to seek an indemnity from another party for the legal costs they have incurred in "successful" court proceedings;
(iv) The fact that a coroner now has a clear statutory indemnity in respect of any adverse order for costs;
(v) The growing incidence of High Court challenges by applicants who are not supported from another source, such as legal aid, an employer, or a trade union;
(vi) The effect of Article 2 of the European Court of Human Rights, as explained in recent judgments, including our earlier judgment in the present case.
(i) CPR 44.3(2)(a) provides unequivocally that the general rule is that the unsuccessful party will be ordered to pay the costs of a successful party, but this does not throw any light on the position of a neutral party. In any event, CPR 44.4(a) provides that the court must have regard to the conduct of all the parties, and if a tribunal or a coroner is studiously neutral in the submissions it or he/she makes to the court, that is a factor to be taken into account. On the other hand the emphasis on justice and fairness in CPR 1.1 will oblige the court to examine anxiously whether a source of public funds is available if a privately funded litigant like Mr Touche has to initiate court proceedings in order to obtain an inquest into the death of a member of his family;
(ii) The Government has paid no heed to the plea of Watkins LJ, the Deputy Chief Justice, in ex p Gray (see para 31 above). Nor has it paid any heed to the recommendation of the Law Commission in its Report No 226 (1994), para 10.6, to the effect that the courts should be able to order costs out of central funds in an appropriate public interest challenge in a judicial review application;
(iii) Simon Brown and Keene LJJ will have been very well aware of the pressure on counsel acting for public bodies in the last ten years to seek orders for costs if successful in litigation when 20 years ago they would have been content to allow costs to lie where they fell;
(iv) Any uncertainty as to whether a coroner might have to pay an adverse order for costs out of his own pocket has now been resolved by the 1999 Act (see para 2 above);
(v) The burgeoning of public law challenges of all kinds (including challenges to coroners' decisions) over the last 15 years have simply accentuated the dilemma faced by the court when an applicant has had to pay for the cost of a successful High Court challenge and there is no readily obvious source of public funds to indemnify him for the expense to which he has been put;
(vi) This dilemma is now accentuated by the fact that recent case-law has made it clear that under ECHR Article 2 the state is obliged to provide an effective inquiry into a death like the death with which we are concerned in the present case (see also R (Khan) v Secretary of State for Health  EWCA Civ 1129), and it would appear unjust that a private citizen should have to be put to heavy expense in order to oblige the state to perform its duty properly;
(vii) The very heavy pressures on the funds available to the Legal Services Commission no longer make it possible to justify the refusal of a costs order on the basis that one public fund would simply be paying another. I do not consider, however, that it is appropriate to take into consideration the fact that the remuneration of counsel (and particularly leading counsel) on a legally aided appeal of this kind is now extremely low (by the standards of the private sector market) and that counsel and solicitors would financially benefit from a costs order in their favour. There is nothing in the Costs Rules to suggest that the financial welfare of a party's lawyers is a legitimate consideration when a court makes an order as to costs.
(i) 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;
(ii) 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;
(iii) 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;
(iv) 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 (iii) 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 there is no other very obvious candidate available to pay his costs.
Lord Justice Longmore:
"to the extent to which they have been increased by the ombudsman's appearance on the appeal."
University of Nottingham v Eyett (No 2)  1 WLR 594, 597A. This affords a possible middle way but, unless the court which allows the appeal is prepared to conduct the assessment of costs itself, it must present a considerable conundrum for the costs judge.
Sir Martin Nourse:
"I have, I confess, some difficulty with the approach in ex p Hay. In the first place I can find no basis in earlier authority for the suggested distinction between the coroner's appearance on the one hand as 'a contesting party' ('contest[ing] the making of an adverse order in an inter partes adversarial mode'), and on the other as 'an amicus'."
As to that observation, it must be said, first, that the earlier authorities cited in argument in that case appear to have been few in number and recent in origin; second, that the much fuller review of the authorities that has now been conducted by Lord Justice Brooke provides a more than adequate basis for the distinction suggested by him in ex p Hay.
"Secondly, it seems to me difficult in practice to apply this distinction. How does one tell which role the coroner is playing? Both postulate that he will be resisting the challenge and arguing the relevant law. It can hardly be by reference to the force of his (or his counsel's) submissions. Amici curiae indeed, played different roles according to the requirements for their assistance…."