England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		Monday, 21 July 2003

1. LORD JUSTICE DYSON: Stephane Aineto (the deceased) died on 29th July 2001. The claimant is his sister. The two applications before the court arise out of an inquest held by the defendant into the death on 19th December 2001. The claim for judicial review was issued on 17th July 2002 and permission was granted by Hooper J on 27th August 2002. On 13th February this year, the Solicitor-General gave the Attorney-General's consent to the claimant to make an application under section 13 of the Coroners Act 1988 ("the Act"). The defendant concluded that the deceased died as a result of an accident. The claimant seeks judicial review on the grounds that (1) the defendant failed to summon a jury as required by section 8 of the Act; (2) the defendant failed to adjourn the proceedings (a) as required by Rule 23 of the Coroners Rules 1984, since a representative of the Health and Safety Executive ("HSE") was not present, and/or (b) in order to allow the claimant to obtain legal representation, and/or (c) in order to allow relevant documentation to be translated and provided to the family in advance of the resumed inquest; (3) there was a lack of sufficient inquiry; and (4) there were violations of Article 2 of the European Convention on Human Rights. Save for the suggestion that there is new evidence, the grounds on which the section 13 application are based are substantially the same as those which underpin the application for judicial review. With the consent of the parties we decided to resolve as a preliminary point the question whether the defendant was in breach of section 8(3)(c) of the Act in failing to summon a jury. For the purposes of this issue, it is not necessary to set out the facts in great detail. Before discussing the issue, however, I need to set the scene.
2. The deceased was a young Frenchman who was living in Brighton at the time of his death. On the evening of 28th July 2001, he went out with a group of friends. In the early hours of the following morning he was crushed beneath the rear wheels of a 7.5 tonne Leyland DAF truck which had been adapted for the purposes of refuse collection. The crew of this vehicle were two employees of SITA, a company contracted at the time to undertake refuse collection work for the local authority, Brighton City Council. An ambulance was summoned to the scene, but the deceased died soon after it arrived. The incident occurred in a pedestrianised area in East Street, Brighton. The truck entered East Street from its southern end at the junction with Bartholemews despite the prohibition of a "no entry" sign. It drew close to a rubbish bin on the left-hand side. The passenger, Mr Atkinson, noticed that there was insufficient rubbish in the bin to justify emptying its contents and loading them on to the truck. Accordingly, Mr Warren, the driver, drove ahead towards the next bin, which was situated on the right-hand side of the road. According to the report of the accident prepared by PC Burt, the two bins were some 32 metres apart. Mr Warren's intention was to see from the driver's cab whether the second bin required emptying. As he approached this bin, he and Mr Atkinson heard and felt a bump. He applied the brakes and the truck skidded to a halt adjacent to the second bin. The two men alighted from the vehicle and found the deceased lying in the street several metres behind the rear of the vehicle. Post-mortem examination showed that he had sustained what the defendant described as "catastrophic injuries", and Dr Patel, the pathologist, said that he would have died within one or two minutes of being hit. Dr Patel also said that the deceased's blood alcohol level was three to four times over the legal limit for driving. The street was well lit and the truck had its headlights on dipped.
3. Opinion evidence as to how the deceased came to be killed was given by PC Burt at the inquest. In his report of 2nd October 2001, he wrote:

"5.1 ... It is a well known and documented fact that alcohol seriously affects one's judgment and abilities. It gives a false sense of confidence, reduces co-ordination, slows down reactions and affects judgement of speed and risk. This must be regarded as one of the factors in this incident.

5.2 Had Mr Aineto been simply walking in East Street and was then knocked down by the north bound vehicle, I would have expected to find some evidence to support this, along the lines of that described in paragraph 4.1 above. Had he been already lying in the road, I would have expected to find some evidence of contact to a front wheel on the vehicle. In both cases I would have expected somebody to have noticed his presence before the incident.

5.3 The only area not readily visible to all four persons as the truck drew near 'The Sussex' public house, was the north west side of the pedestrian zone. In this area is an entrance to an arcade and two shop doorways. Mr AINETO could have emerged from here and somehow stumbled into the side of the passing truck, before falling under its rear wheels."

I interpolate that the reference to the "four people" is a reference to four witnesses who were present that night, none of whom apparently saw the deceased.

4. PC Burt, as I have said, gave evidence at the inquest. He said:

"So clearly with his pattern of injury, the lack of marks on the vehicle, these indicate the unusual nature of the incident."

A little later, he said:

"But again they were walking down past the Sussex square, past the taxi rank on the other side, towards the pedestrian zone and even they, certainly Mr Meadows in his statement and he emphasised again today, simply was not aware of anybody else in the street. So it remains a mystery where Stephane came from. All we can say is that when the truck struck him or went over him he was lying in the road. He certainly was not standing up because the truck would have hit him with the front of the truck and knocked him over. There is nothing to suggest that that happened."

Again:

"Again it emphasises the fact that there remains more unanswered questions than there are questions answered. We simply do not know where Stephane came from, but logic says he must have been somewhere around that side because nobody saw him. It is very unusual for four people not to notice somebody."

In her conclusion, the defendant said:

"So it is left for me to reach a conclusion. The conclusion that I reach is that he died as a result of an accident. Why this happened, one cannot say. It is relevant that he was intoxicated because this would have affected his judgment. Indeed, I think if he had not been intoxicated it would not have happened because, as PC Burt explained, it is almost impossible for him to imagine that Stephane could have misjudged the vehicle so that he fell under the rear left wheel. Could he have walked out across the road and then stumbled? Maybe. We simply do not know. But he did die as a result of an accident."

5. With this introduction, I can turn to the section 8 point: should a jury have been summoned? Section 8 of the Act, so far as material, provides as follows:"

"(3) If it appears to a coroner, either before he proceeds to hold an inquest or in the course of an inquest begun without a jury, that there is reason to suspect...

(c) that the death was caused by an accident, poisoning or disease notice of which is required to be given under any Act to a government department, to any inspector or other officer of a government department or to an inspector appointed under section 19 of the Health and Safety At Work etc Act 1974...

He shall proceed to summon a jury in the manner required by subsection (2) above."

6. The reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 ("the Regulations") define the circumstances in which notice is to be given to the HSE of a road accident. So far as material the Regulations provide as follows:"

"3(1) Subject to regulation 10, where-

(a) any person dies as a result of an accident arising out of or in connection with work; the responsible person shall-

(i) forthwith notify the relevant enforcing authority thereof by the quickest practicable means; and...

10...

(2) The requirements of regulations 3 and 4 relating to the death or injury of a person as a result of an accident, shall apply to an accident arising out of or in connection with the movement of a vehicle on a road only if that person-

(a) was killed or suffered an injury as a result of exposure to a substance being conveyed by the vehicle; or

(b) was either himself engaged in, or was killed or suffered an injury as a result of the activities of another person who was at the time of the accident engaged in, work connected with the loading or unloading of any article or substance onto or off the vehicle."

7. The critical question in this case is whether the Coroner had reason to suspect that the deceased was killed as a result of the activities of another person who was at the time of the accident engaged in work connected with the loading or unloading of any article or substance on to or off the vehicle. If the answer is "Yes", then the defendant was obliged by section 8(3) to summon a jury. In a succinct and cogent argument, Miss Hewitt submits that the answer to this question is "No". She accepts that the accident occurred on a road. Regulation 2(1) gives "road" the same meaning as in section 192(1) of the Road Traffic Act 1998, i.e. "any highway and any other road to which the public has access ..." It is clear that East Street is a road within the statutory meaning. Next, she submits, that the other person whose activities killed the deceased was Mr Warren. He was the driver of the vehicle which the defendant had reason to suspect caused the death by running him over. It was his activity of driving the vehicle which caused the death. None of this is, I believe, controversial. The dispute centres on the final stage of the argument. Miss Hewitt submits that at the time of the accident Mr Warren was simply driving the vehicle on the road, and was not engaged in work connected with the loading or unloading of the bins. She does however accept (rightly in my view) that the loading or unloading of the contents of the refuse bins in East Street was the loading or unloading of an "article or substance onto or off the vehicle" within the meaning of regulation 10(2)(b). She submits that regulation 10(2)(b) only applies where, at the time of the accident, the activity of loading or unloading is actually taking place. In other words, it applies only if the accident occurs during the course of the loading or unloading process.
8. I cannot accept such a narrow interpretation of the regulation. First, it is important to note that regulation 10(2) is concerned with accidents arising out of or in connection with the movement of a vehicle on a road. The restriction of the application of regulations 3 and 4 to accidents of that kind, only in the two cases identified in regulation 10(2)(a) and (b), indicates that these two cases are also concerned with accidents arising out of or in connection with the movement of a vehicle on a road. Miss Hewitt's interpretation focuses on the activity of loading and unloading, which is often conducted whilst the vehicle is stationary rather than on the movement of the vehicle. But secondly, and more importantly, Miss Hewitt's interpretation does not give sufficient weight (or indeed any weight) to the words "work connected with." She invites us to construe regulation 10(2)(b) as if the words "work connected with" were not present; viz as if the paragraph provided "who was at the time of the accident engaged in the loading or unloading et cetera."
9. In my judgment, the words "connected with" are important. They make it clear that the duty to report does not only arise when an accident is caused as a result of the activities of a person who is engaged in loading or unloading. It also arises when an accident is caused as a result of the activities of a person who is engaged in work connected with loading and unloading. That work may, but need not be, the work of loading and unloading itself. The work must be related to, or connected with, the loading or unloading. In some cases it is obvious that work is so connected; in others it is obviously not so connected. There are borderline cases where, this being essentially a question of fact and degree, there is room for difference of opinion.
10. I have no doubt that on the facts of this case, at the time of the fatal incident, Mr Warren was engaged in work connected with the loading of the contents of the refuse bin onto the truck. His driving of the vehicle at the moment when it collided with the deceased was very closely connected with the loading of the refuse bins onto the vehicle. It was so connected both in time and space. The collision occurred at a point more or less adjacent to one of the bins. It occurred an instant before, but for the accident, Mr Warren would have looked into the bin to see whether it needed to be emptied and its contents loaded on to the truck. It was also closely connected with the purpose of loading. Mr Warren was not driving on East Street for any other purpose than to load the contents of those refuse bins that needed to be loaded.
11. I would therefore hold that in this case the defendant had reason to suspect that the conditions of section 8(3)(c) were satisfied and that she erred in failing to summon a jury. I should add that there is no evidence that she in fact applied her mind to this question. Miss Hewitt submits that we should infer that she must have done so. In her second witness statement the defendant says:

"As I stated in paragraph 3 of my first statement, when I was first informed of Mr Aineto's death, on the 31st July 2001, I was also made aware that he had apparently been killed when in contact with a rubbish collection dustcart. In view of the involvement of the dustcart I did consider that this was a case which the Health and Safety Executive ("HSE") may wish to investigate itself. Within two or three days I therefore asked my officer, Theresa Bromage, to inform the HSE of the death. I do not hesitate to involve the HSE in appropriate cases, and I find their investigations and attendance at inquests are of great assistance.

Mrs Bromage reported to me that she had contacted the HSE by telephone and had informed them of Mr Aineto's death and its circumstances. They indicated to her, during the conversation that they did not need to become involved in the investigation. I knew the events surrounding the death would be thoroughly investigated by the Police Crash Investigation Unit, and that I would be able to hear evidence of that investigation at the inquest. However, had that police investigation or any other evidence which subsequently came to my attention made me think that the HSE ought to be contacted again, then I would not have hesitated to have done this, as I have in the past."

12. There is an issue as to whether the HSE were in fact so notified. It seems clear that there was no formal notification. However that may be, it seems that even on her own evidence the defendant considered notifying the HSE only in order to see whether they should be involved in the investigation. In this respect, no doubt, she had Rule 23 in mind. But it does not follow from this that she considered the section 8(3)(c) question. If she had done so, I would have expected her to say so in terms and explain why she considered at the time that there was no reason to suspect that the death was caused by a reportable accident. As Mr Soorjoo points out, the fact that Mrs Bromage informally contacted the HSE suggests strongly that the defendant did believe that there was reason to suspect that this was a section 8(3)(c) case. As Taylor LJ pointed out in R v Inner London Coroner ex parte Linnane [1989] 1 WLR 395, 398:

"Secondly, the phrase which is the preamble to the specific provisions of subsection (3), 'there is reason to suspect,' does not require positive proof or even formulated evidence. The question is usually to be decided at a preliminary stage although, as indicated in the subsection, it may arise for decision during the inquest. Therefore, any information giving 'reason to suspect' will suffice."

I should add that the HSE has now confirmed in writing that it believes that the incident was reportable under the regulations: see, for example, its letter to the Public Law Project of 31st October 2002. This expression of opinion, made with the benefit of hindsight, must be treated with caution. But it fortifies me in the conclusion that I have reached for the reasons that I have given.

REMEDY

Does it follow that the defendant's verdict should be quashed and a fresh inquest ordered? Mr Soorjoo submits that this is what we should order. Miss Hewitt does not urge to the contrary. She submits that it is a matter for the discretion of the court. But she does contend that on the material presently available, there is no realistic prospect that any jury would bring in a verdict other than one of "accidental death". I recognise the force of counsel's submissions, but I am in doubt that there should be a fresh inquest. I accept that the court could exercise its discretion in a case such as this not to order a fresh inquest, even though the Coroner should have sat with a jury. But the failure to summon a jury was a serious procedural irregularity. In my judgment, there need to be cogent reasons to deny a fresh inquest with a jury when the court decides that the first inquest should have been conducted with a jury. The question therefore is whether there are sufficiently cogent reasons to justify that course in the present case. Leaving the section 8(3)(c) point aside, I have not discussed the detailed grounds advanced in support of the claim for judicial review and the section 13 application. The defendant has answered each one of these grounds and it is quite possible that the claimant would not have made good all or even any of them if they had been fully argued out.

13. This was a difficult case. The impression I have formed from reading the transcript of the entire proceedings is that the defendant handled it fairly and sensitively. But I can understand why the family are left with a sense of grievance. There are aspects of the incident which caused the deceased's death which remain unexplained (I have already referred to what PC Burt and the defendant herself said about these) and then there is the deeply unsatisfactory role played by the HSE. As I have said, the HSE now consider that this was a reportable accident. They have been corresponding with the deceased's family and their representatives for almost 18 months. From time to time they have written saying that they are still investigating the matter. Thus, on 26th February 2002, they wrote to M and Mme Aineto, saying:

"Now that the matter has been brought to our attention, you may be assured that we will fully investigate the circumstances in relation to the relevant health and safety law and any safety lessons to be learned."

Then on 1st August 2002 they wrote to the Centre for Corporate Accountability:

"The investigation has progressed well, and we have obtained some of the relevant documentation that had previously not been discovered...

The vehicle involved in the incident has been inspected by one of HSE's Specialist Inspectors. We have taken action in relation to the continued use of this vehicle in its current role, and this has led to improvements in the overall safety of the vehicle in relation to public safety."

On 31st October they wrote, as I have said, to the Public Law Project, saying:

"The documents requested have been obtained in relation to an ongoing criminal investigation. They are not in the public domain, and cannot therefore be disclosed...

Legal proceedings are still under consideration, and therefore I am able to provide further information at this stage."

14. A letter to similar effect was written on 13th December 2002. On 1st May this year the HSE wrote again to the Centre for Corporate Accountability in response to a letter dated 31st March which had requested an updated progress with the investigation:

"I have not separated what has been done since December. The lines of investigation are complex and form part of a continuing process so I am not able to break each activity down in the way you have requested. As you know the legal action that is being pursued in relation to the inquest will have implications on the timing of the completion of our work in relation to this incident."

Similar letters were written on 12th and 16th May. Since then there has been a limited disclosure of documents by the HSE, but it seems to be common ground that there is nothing in those documents which sheds any light material to the issues with which these applications are concerned. There is no doubt that the HSE is still withholding a good deal of potentially relevant material.

15. In this unsatisfactory state of affairs, it is not surprising that the family feel that there has not been a proper investigation. I cannot say with complete confidence that a fresh inquest, particularly one in which there was participation by the HSE, might not cast light in corners of this story which have not yet been properly illuminated. I hasten to say that the defendant is not responsible for the delays on the part of the HSE.
16. For these reasons, I would quash the verdict and direct that there be a fresh inquest conducted before a different Coroner and a jury.
17. MR JUSTICE GIBBS: I agree.
18. MISS HEWITT: The question of the different Coroner, may I raise one point about that?
19. LORD JUSTICE DYSON: Yes, of course.
20. MISS HEWITT: Under the Act, section 13, if I could ask your Lordship to turn to it, you can see that there is a power for the court section 13(1)(b) -- 13(2), the defendant is more than happy that this is handled by a different Coroner and fully understands the reasons for that. She is the only Coroner in that administrative area, and there is not a different district. Therefore, if the case were to stay within the administrative area, it would have to be handled by a deputy and, therefore, from her own office. The likelihood is that the matter, purely logistics, she would be making some decisions along the way in the handling of the case.
21. LORD JUSTICE DYSON: It does not sound to me that this ought to be handled by a deputy any way.
22. MISS HEWITT: It is not an ideal situation.
23. LORD JUSTICE DYSON: No, so what is the solution?
24. MISS HEWITT: I am not sure there is a clear and obvious one. It is pointed out that by section 40 the Coroner herself, you see, has some power, but section 40 begins:

"If it appears to a Coroner that in the case of a body lying in his district an inquest must be held but is expedient that it be held by another, then jurisdiction can be transferred."

That clearly foresees therefore the beginning of the process where jurisdiction is engaged by the presence of a body. Whether this order can be seen as effectively treating this case as a de nova position and is therefore in that position, therefore the defendant could make use of this section in order to assist, and by that means have the jurisdiction transferred to a Coroner in a different administrative district, if that interpretation----

25. LORD JUSTICE DYSON: The one thing you do not want to have is to make an order in which there is no jurisdiction, so that if there was an inquest and a result which somebody does not like, they can then come to the court and say that that Coroner had no jurisdiction to deal with it, and that would be the most disastrous outcome.
26. MISS HEWITT: The defendant has contacted and asked the Coroner in East Sussex whether he will be willing to accept jurisdiction. He has said that he would. Subject to that being an act which is within the power both of the this defendant and that Coroner that, may be the way forward, but I thought it right to raise the point.
27. LORD JUSTICE DYSON: Yes, you are right to raise it. Mr Soorjoo, what do you say about this?
28. MR SOORJOO: My Lord, perhaps I am about to adopt a far too simplistic approach to this. It seems to me that section 13 there relates to a section 13 appeal, but this court still retains its powers under judicial review. I am not sure there is any similar limitation that prevents the court from making an order that it be considered by a Coroner in a different administrative area. I am not aware of any statutory limitation on the court, that is purely concerned with section 13 appeals; there are both applications before this court.
29. LORD JUSTICE DYSON: Yes. Miss Hewitt that, at first blush, seems to be an answer, does it not: section 13 is section 13?
30. MISS HEWITT: Yes, I am told that there is no authority. The point has never been reviewed by the court or covered by any statue or statutory instrument, and whereas of course the court does have some powers, the mechanics for, in effect, transferring cases to different Coroners in different administrative districts is not present and does not necessarily work easily.
31. LORD JUSTICE DYSON: I think that it is clearly right that this should be heard by a different Coroner. It is clearly also right it should not be heard by a deputy, not only for the reasons that you gave, but also because it seems to me that this is a case which requires very careful handling by an experienced Coroner. At the moment, I cannot see any answer to Mr Soorjoo's points so far as judicial review is concerned and that is sufficient, is it not? In a sense it does not matter under what heading we have quashed it. We have quashed it in fact under the judicial review heading.
32. MISS HEWITT: If you were to order that it is to be transferred to the East Sussex----
33. LORD JUSTICE DYSON: My Lord has suggested out of an abundance of caution, maybe the court could direct that the Coroner for East Sussex be deemed for the purposes of this inquest to be the Deputy Coroner to the defendant in these proceedings -- you do not like that? No, that does not go down well.
34. MISS HEWITT: My Lord, I am promptly reminded that when the similar point was considered in the Marchioness case the Court of Appeal concluded that it could not order simple transfer of the case from one Coroner to another, and a route had to be found other than a simple order from the court.
35. LORD JUSTICE DYSON: Well what route is there, if it is not from the court?
36. MISS HEWITT: It is a gap, if I can put it that way. The transfer in cases such as this, where the question often arises, is well perhaps it should go before a different Coroner. I think there is a gap in the procedures as to how that can properly be achieved. If it can be achieved under section 13 by expressly going to another administrative district, so that is allowed for. Beyond that, it is not expressly allowed for.
37. LORD JUSTICE DYSON: This is very unsatisfactory. I realise that my Lord's suggestion provoked a lot of grave shaking of heads, but actually if everyone is prepared to agree to it, what is wrong with it?
38. MISS HEWITT: My Lord, the thinking is that acting under section 14 would be the case, despite the words at the beginning of the section, that clearly does give a power to the defendant which she is more than happy to exercise if it is proper for her to do so. Given there is agreement from the separate administrative district to accept the case, and if the other party in these proceedings is happy with that, then one assumes that would be the easiest way forward. Strictly speaking, it does not fall within the (inaudible). Yes, I suppose the only concern would be perhaps an undertaking or indication from the claimant that no points would be taken about the exercise of the defendant's power under section 14.
39. LORD JUSTICE DYSON: Yes, the slight concern about that is if there is no jurisdiction to do it, there is no jurisdiction to do it. I am not sure that -- Mr Soorjoo is going, I hope, to resolve the problem here?
40. MR SOORJOO: I fear not, my Lord. I am looking really for a short-term solution. Clearly, this issue is a difficult one; perhaps one that certainly myself and Miss Hewitt did not anticipate. I wonder whether or not if the court simply ordered that there be an inquest to be held by a different Coroner in another district, and effectively make the order with leave for either party to apply back to this court if we cannot resolve the matter administratively. It seems to me, putting forward suggestions without having had the opportunity to think the matter through carefully, and obviously we would not want to urge the court to make an order, as I am sure Miss Hewitt would not, for which there is no jurisdiction. But it does seem to me that if the court makes the order that it be considered by a different district, then the parties can go off and see whether they can make that work in a lawful manner and, if we can, we need not trouble the court, but if we cannot we will have to come back.
41. LORD JUSTICE DYSON: The only problem is, as from the end of this week, I shall be away and we would not be able to reconvene until October, maybe not even then. So there would be delay.
42. MR SOORJOO: Unless we came back before this court before the end of this week.
43. LORD JUSTICE DYSON: Well, I would not want to encourage you to do that very much, we have an extremely congested list this week. I am troubled that there are clearly some difficulties here. You mentioned the Marchioness case and, for my part, I would like to see what the Court of Appeal said, and the reasons it gave for saying that.
44. MISS HEWITT: There are a number of points that cause concern to Coroners in general, but I must point out particularly further that section 14(9) refers to the costs of inquests, and it is said that it should be for the Coroner who assumes and not for the Coroner who ceases to have jurisdiction to hold the inquest under this section to pay any fees or other expenses incurred in the course of his duties by the latter Coroner before he ceases to have jurisdiction, any such fees or other expenses shall be accounted for and repaid accordingly. That in itself could cause difficulties in transferring.
45. LORD JUSTICE DYSON: I think Mr Soorjoo's suggestion is probably the best we can do, is it not, giving you both liberty to apply and to hope that you can resolve this. But if you cannot resolve it, you will have to come back. I think you will have to submit your respective positions in writing beforehand, so we know what the scope of the argument is and we can have thought about it for ourselves before we come into court.
46. Very well so. We will simply say then the verdict to be quashed. Direct a fresh inquest by a Coroner from a different administrative district with a jury. The parties to endeavour to agree the mechanics of that but, in default of agreement, the parties given liberty to apply to this court for further directions. This problem must crop up from time to time and, I do not know, is there a Coroners Association or some such body, it may be that somebody----
47. MISS HEWITT: My Lord, the Coroner behind me is the editor of Jarvis.
48. LORD JUSTICE DYSON: Yes, Mr Matthews, I did not recognise him.
49. MISS HEWITT: There is not an easy answer to this.
50. LORD JUSTICE DYSON: Well, thank you very much. Now, the question of costs.
51. MR SOORJOO: Indeed, my Lord, I have drafted a submission.
52. LORD JUSTICE DYSON: Yes, you have.
53. MR SOORJOO: I hope both my Lords have had an opportunity to read that. My learned friend has had a copy, and it may well be she is not resisting costs, I have not been told. I will not repeat it, my Lord.
54. LORD JUSTICE DYSON: Let us hear what Miss Hewitt has to say, shall we?
55. MR SOORJOO: Indeed.
56. MISS HEWITT: The court does have discretion on the question of costs despite the outcome, if I could put it in that way. I recognise straightaway the claimant is privately paying and that makes some difference. I asked my learned friend at the break to be clear about it, whether that was privately paying in the usual sense, without any element of pro bono or funding from any other source, as it is sometimes, and I am told that he is privately funded, so I accept that as a starting point.
57. My Lord, I think all I say in relation to the discretion of the court does have on costs, is that ultimately we have looked at a small point only, and clearly the case has turned on that. It would, as I said this morning, have maintained -- the defence would have continued to be that there were clear arguments on other aspects of the case and, in particular, in relation to the section 13 proceedings, which were separate and further proceedings, the defendant was in some considerable difficulty in reacting fully to the suggestion of the new evidence, certainly that part coming from the Health and Safety Executive and not having been seen even now.
58. LORD JUSTICE DYSON: It is always difficult for a court when a result has been arrived at without looking at certain issues, it particularly arises when parties settle. On the whole, the court, inevitably not having gone into them, cannot go into the issues by the back door on the back of an argument about costs. So we cannot, whatever view we may provisionally have about the merits of those other matters, we have not heard argument about them, and I do think it would be right for us to proceed to deal with costs on the basis of any particular outcome of those issues. I mean, as I said in my judgment, it may well that they would have got nowhere with any of them. One just does not know. How should that be reflected in an order for costs?
59. MISS HEWITT: I put the distinction between the two sets of proceedings before you particularly, because the court may feel that in relation, certainly to the section 13 application, which was further set, that there were issues as to whether that further set of proceedings was necessary in any event; and secondly, the fact that in reacting to that the defendant has effectively had her hands tied by the HSE and reacted sensibly to it. To that extent, the court may feel able to reflect that by saying no order to costs in relation to those parts of the proceedings.
60. LORD JUSTICE DYSON: What is the position so far as the Coroner's liability to costs is concerned; she is indemnified by the local authority?
61. MISS HEWITT: Yes.
62. LORD JUSTICE DYSON: The local authority?
63. MISS HEWITT: Yes, a recent amendment to the legislation put that in place. Up to a few years ago it was usual not to have orders of costs against Coroners unless the court was seeking to mark its disapproval.
64. LORD JUSTICE DYSON: Yes, rather like with magistrates; has there been a similar amendment with them as well?
65. MISS HEWITT: I do not know.
66. LORD JUSTICE DYSON: It does not matter, it is not relevant.
67. MISS HEWITT: It was a change in the Court of Appeal, in Touche it was decided that as a starting point costs should be (inaudible) as between any parties in any proceedings, whether it was on back of that----
68. LORD JUSTICE DYSON: Your suggestion is no order for costs?
69. MISS HEWITT: Either that or tiny in relation to the judicial review.
70. LORD JUSTICE DYSON: Either no order as to costs, or that the claimant should have her costs in relation to judicial review but not the section 13. Thank you very much. Well, Mr Soorjoo, what do you say about that?
71. MR SOORJOO: My Lord, I will not repeat the points that I made in the submissions. I would say that, as my learned friend has raised the section 13 point, if the court turns to paragraph 7 of the cost admission, my Lords will see that there were numerous documents that were before the Coroner that were relied upon in support of a section 13 application, the report from Mr Linman (as heard); the fact that the police had shifted their position; the fact that the vehicle, contrary to earlier belief, was deemed unsafe; the availability of the evidence from Alexis Oman (as heard); the fact that contrary to what the Council had said there were no health and safety supervision arrangements in place, and there were a number of matters that have been with the Coroner for some time. Both the defendant and the claimant are without the benefit of new material that exists from the HSE, but that did not preclude and should not have precluded the claim for bringing the section 13 application. Indeed, my Lords, it would be perhaps unwise, if not irresponsible, for her advisers to take the view that another remedy which offers a different advantage, in the sense that post-decision evidence can be taken into account, should not be pursued where such evidence is available, and indeed it was generally felt that it was appropriate to grant the Attorney-General's (inaudible). So I do not think, my Lords, the fact that we have pursued another available remedy, which adds a different dimension to this case, is a matter that should be held against the claimant. My Lords will be aware that the Coroner's position on this, and I have reflected the numerous attempts by the claimant throughout, from the very outset, to try and resolve this matter, in keeping with the preaction protocol, but the Coroner's response, through her solicitor, was that there was no merit in the section 13 application and that she would be strenuously opposing it.
72. So, my Lords, I would submit there is, in reality, no distinction that it would be wrong for the claimant not to benefit from her entitlement to costs simply because an approach has been adopted today which has resolved the matter sooner rather than later.
73. Just one other matter, my Lord, just to bring the position up-to-date, my learned friend referred to the change in the statutory provision, and it is section 27(a) of the Coroner's Act which came into force in 1999, which enabled local authorities to indemnify the Coroner and in Jarvis at page 448, there is reference to the case of Touche where the Court of Appeal considered this issue post the amendment. The court laid down authoritatively that if the Coroner chose to appear at the hearing, he was at risk as to costs whether it was conduct meriting strong disapproval or not. Unless I can assist further?
74. LORD JUSTICE DYSON: We will retire for a moment. Thank you.
(SHORT BREAK)
75. LORD JUSTICE DYSON: Our decision on costs is as follows. We think that the claimant should have her costs of the judicial review proceedings. We think that it would be wrong to chop up the costs and somehow seek to identify a proportion attributable to the section 8 point and then say perhaps no order for costs as to the balance.
76. But so far as the section 13 proceedings are concerned, we think the right order there is no order for costs. It does seem to us that the main point in the section 13 proceedings which is different from, and additional to, the judicial review proceedings is the Article 2 point. We see considerable difficulties in the path of the claimant in making that good. It would be quite wrong to make an order for costs which reflected any view as to the outcome of that issue. So far as the rest is concerned, it seems to us that most of it could have been brought into the judicial review proceedings as being relevant to the adequacy of the investigation that was carried out, which was one of the limbs of the judicial review complaint.
77. So it seems to us that given that we have not dealt with the section 13 proceedings, that in all the circumstances the right answer is no order for costs there.
78. MR SOORJOO: My Lords, just one other matter that I do wish to raise with your Lordships and that concerns the disclosure application which was made after seven months of correspondence, as I indicated to my Lords at the beginning. My solicitors were certainly requesting material, and various letters throughout the period of seven months were constantly requesting material, and indicated a disclosure application would be made. A disclosure application was lodged with the court and it was only a few days after it was lodged that in fact the material requested, that had been promised seven months ago, was provided just earlier this month. So, my Lords, those costs are incidental, but they were directly relevant and I would ask that the costs of that application be included.
79. LORD JUSTICE DYSON: This is disclosure by the HSE -- by the Coroner?
80. MR SOORJOO: It was a disclosure application against the Council. In fact Miss Woodley acts for both, and specifically those instructing me were requesting material and they had been promised material.
81. LORD JUSTICE DYSON: Have you a summary of the bill of costs in relation to that?
82. MR SOORJOO: My Lord, no.
83. LORD JUSTICE DYSON: How much are we talking about?
84. MR SOORJOO: No more than £1,000 I am told. It was over a period of seven months.
85. LORD JUSTICE DYSON: Yes, I will hear from Miss Hewitt, thank you.
86. MISS HEWITT: As I understand it, my instructing solicitor, wearing her hat as solicitor for the Council, did give documents to the claimant, as they were seeking. But I emphasise wearing her hat as Council solicitor in these proceedings the parties are the defendant and HM Coroner, my instructing solicitor, acting on her behalf, had no access to these documents, and the request for these documents, in my submission, though possibly relevant, were not even relevant to the issue before the court, but they did not come from the defendant as a party to these proceedings. I emphasise that my instructing solicitor is wearing an entirely different hat in dealing with that, and would have been indeed justified in saying that 'I cannot deal with this aspect, and you will have to speak to a different member of the legal team at Brighton and Hove', but did not take that course and dealt with the matter. But, as I say, it is not an implication that arises out of these proceedings, or should have been issued in these proceedings against the defendant at all. They are not, to be clear, they are not documents that the Coroner has ever had. They are documents that are sought from the Council.
87. MR SOORJOO: My Lord, firstly to make it clear----
88. LORD JUSTICE DYSON: I am not going to allow this to go on for very long.
89. MR SOORJOO: I will be very brief, I do need to clarify matters. Firstly, I was not seeking an order for costs of that application against the Coroner but against the Council.
90. LORD JUSTICE DYSON: Have you given notice to the Council that you were making this application today?
91. MR SOORJOO: They were on notice that we would be seeking costs but not specifically today. But they were on notice.
92. LORD JUSTICE DYSON: If they were not given notice that you are making an application this time today, how can they deal with it?
93. MR SOORJOO: Well, my Lord, I will not make any further application.
94. LORD JUSTICE DYSON: I just do not see how you can.
95. MISS HEWITT: My Lord, I do not act for them.
96. MR SOORJOO: If I could just respond----
97. LORD JUSTICE DYSON: No, I am not going to allow this to go on, I am afraid. You can say whatever you like to Miss Hewitt, and she will no doubt pass that on to whoever she sees fit. But if you have not given notice of the application against the Council today, then we simply cannot deal with it.
98. MR SOORJOO: I understand.
99. LORD JUSTICE DYSON: Thank you very much. I make it clear that if you cannot agree the business about which Coroner and where, then it should come back to us. That may be some time, so I hope you can agree it. Unless you are content that it should come back to me alone by consent, I think that would be acceptable. Certainly I am willing to, my Lord is out of London for the first half of next term. So if you are content that any application under the liberty to apply be dealt by me alone, then it can be done earlier.
100. MR SOORJOO: For the claimant, we would my Lord.
101. LORD JUSTICE DYSON: Yes, very well. Thank you.