England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Sitting at Birmingham Civil Justice Centre Birmingham B4 6DS
		14 October 2004

1. MR JUSTICE MITTING: Mrs Jessie Hall was born on 26 February 1922. She died on 17 April 2003, shortly after 10am at Blackburn Royal Infirmary, aged 81. She had been admitted on the previous afternoon at about 4pm, following a fall about 40 minutes before from an open window at Longfield Residential Home, Preston New Road, Blackburn -- a home for elderly mentally disabled people.
2. She had been a resident at that home for about five years and suffered from dementia. Her symptoms included confusion. She had in the past absconded from the home, on one occasion being returned by the police. There was evidence from the manager, Mrs Hegarty, that she was the sort of individual who was always looking to escape. The home operated what was called a "locked door" policy. Opening restrictors were fitted to all but one of the windows. The exception was a sash window in the residents' lounge. Photographs show that the ledge of this window was about 12 feet above a concreted area below.
3. The 16 April 2003 was a warm day. Three staff were in attendance to look after 24 residents. One of them, Mr Neilson, opened the window in the lounge by raising the lower sash some 10 to 12 inches. He found the window stiff. He left in front of it a large two-seater settee. At about 3.20pm he was outside. He saw Mrs Hall's head sticking through the window and told her to put it back in. She then to his horror re-appeared, this time with her feet dangling out of the window and holding on to the window frame with her fingers. Despite his best efforts to take her weight, he was unable to prevent her from falling to the ground. She fell onto her right elbow, fracturing it and also sustained fractures of her pelvis. She was taken to hospital by ambulance soon afterwards. Mr Neilson went up into the lounge and found the settee had been moved away from the window. The coroner drew the natural inference in his summing-up to the jury that it was she who had moved it. Neither of the other two members of staff on duty were in the lounge when the incident occurred.
4. An inquest into her death was held by Her Majesty's Coroner for Blackburn, Hyndburn and Ribble Valley (Mr Michael Singleton) and a jury on 9 January 2004. At the conclusion of the hearing, the jury completed an inquisition which had already partly been typed for them. Elements which Mr Singleton anticipated were uncontroversial and which would be accepted by the jury were typed in beforehand and were unaltered by the jury. The relevant parts of the inquisition read:

"The following matters were found:

2. Injury or decease causing death.

1a Bronchopneumonia.

b Dementia.

ii Traumatic fractures to pelvis and elbow.

3. Time, place and circumstances at or in which injury was sustained.

3.30pm on 16 April 2003 at Longfield Care Home, Preston New Road, Blackburn. Circumstances are the window was left open and unattended. It was wide enough to allow Mrs Hall to climb through and fall.

4. Conclusion of the Coroner as to death.

Accidental death to which neglect contributed."

5. Its terms appear to be contradictory. This results in part from the evidence as to the cause of death received at the inquest, and in part from the nature of the form, which for reasons which I will explain later on in this judgment, is now inadequate to reflect developments in the law relating to inquests.
6. The post-mortem report prepared by Dr Prescott, which was summarised but not apparently put in evidence before the jury, stated:

"In my opinion, the cause of death was:

1a Bronchopneumonia.

1b Dementia.

2 traumatic fractures to pelvis and elbow.

Comments

The cause of death is bronchopneumonia which is a recognised complication of dementing mental states. It is likely the pneumonia was present before the accident, and it is likely that the pneumonia would have caused death in spite of the accident. The accident caused fractures to the pelvis and elbow, but the amount of blood loss and trauma is not sufficient to have caused death. It may however have contributed by inducing further stress and immobility, which could have further exacerbated the pneumonic process."

7. The form on which that report was made followed that recommended in Rule 10(1) of the Coroners Rules 1984, which is printed in Schedule 2 to the Rules. The references to 1a, b and 2 are references to the form contained in the Rules which suggest that the cause of death should be given in the following manner:

"I(a) Disease or condition directly leading to death.

I(b) Antecedent causes.

II Other significant conditions contributing to the death but NOT related to the disease or condition causing it."

8. Dr Prescott's comments suggest that he did not have this note in mind when he completed II. They were to the effect that stress and immobility might have exacerbated the pneumonic process, which she identified as the disease or condition directly leading to death and not as another significant condition contributing to the death but not related to the disease or condition causing it.
9. His evidence to the jury was transcribed and, in relevant parts, is as follows:

"On examining the lungs, the main finding relevant to this case is that the left lung base showed a well established bronchopneumonia and it was my opinion that this bronchopneumonia predated the fall. That is based on the extent of the pneumonia, its appearance to the naked eye and also its consistency. When the lung is very consolidated or firm it would have taken at least 4 to 8 days if not more to establish that appearance. On examining the heart there was some patchy areas of scar tissue which may in part be related to old age and partly due to some mild narrowing of the coronary arteries that supply the heart. On examining the stomach there were a few superficial erosions or ulcers. This is not uncommon in this age group. The other organs were essentially normal or not relevant to the case.

The examination of the skeletal system showed that the pelvis had a fracture of the right pubic ramus and symphysis and that there was some bleeding around the right pelvic brim approximately 600 mils. This is not a large amount of blood and these fractures by themselves are not the cause of death.

It was therefore my opinion that the immediate cause of death was bronchopneumonia and I thought that the underlying condition principally causing the pneumonia in this case was Dementia. However, I did put under category 2 of the cause of death certificate traumatic fractures to pelvis and elbow. Now I might explain that this category relates or pertains to conditions that are contributory to the cause of death but not forming part of the immediate cause of death. It is my opinion that the pneumonia predated the accident and pneumonic processes are a recognised complication of demented mental illnesses, partly due to immobility and partly due to destruction of brain tissue which leads to respiratory imperfections of function. I thought that the fractures to the pelvis and elbow were not sufficient to have caused death and the amount of blood loss was very trivial. However, it has to be said that these fractures may have contributed to the cause of death in the sense that they would have induced some further stress on the body and further immobility."

10. In response to questions from the coroner, he said:

"Q: So as far as the jury are concerned, they have before them an inquisition and you would be describing it as being 1(a) bronchopneumonia, 1(b) dementia, and under 2 traumatic fractures to pelvis and elbow. On the evidence before you at the present time that would be your conclusion?

A: That's correct.

Q: Now always dealing on the balance of probabilities, the question is this: had Mrs Hall not had the fall that she had on 16 April, would the mode of dying, in other words the bronchopneumonia, have been the same and would the time scale have been similar?

A: I would say that on the balance of probabilities she would have died of the pneumonia irrespective of the fall.

Q: Right. That deals with, if you like, the mode of dying. In terms of, if you like, the time, do you think without the fall there is likely to have been a significant difference in time?

A: I don't think there would have been a significant difference in time, sir."

11. In summary, Dr Prescott's opinion was that the fractures may have induced some further stress and immobility, but Mrs Hall would have died in any event of pneumonia, at a time not significantly different from that at which she did die, that is to say about 19 hours after the fall. He did not in that passage explain what he meant by "significant". Mrs Newbury, Mrs Hall's daughter, asked the necessary questions to elucidate what he meant:

"Q: what do mean by significant? Do you mean she would have been dead shortly?

A: As I said, I feel that the pneumonia was well established. Obviously one isn't God. One can't predict when somebody is going to die, but I think with such an advanced pneumonia she would have died within that same time scale.

Q: So she would still have been dead at 10 o'clock on Thursday morning whether she fell out of the window or not?

A: I can't tell you precisely the date and time but I think within a day or two she would have succumbed, unfortunately."

The clear inference from those answers is that, although Dr Prescott could not say precisely when she would have died but for her fall, it was at least possible that she would have lived for another one or two days. In law, such a period is capable of being judged by a fact-finder as "significant" because it is more than minimal.

Dr Kirk, who treated Mrs Hall in hospital, described her condition when he saw her at about 10.30pm on the 16th. His statement was read out at the inquest by him and included the following:

"From listening to Jessie's chest I was able to hear crackles coming from her lungs. The majority of the crackles were coming from her left lung. In addition to this I am able to say that from taking blood from Jessie I observed an increased level of white blood cells which occurs when an individual has an infection. This infection could be anywhere in a person's body. However, from combining the blood test with the examination of the patient I am able to say that I believe that this infection was pneumonia. In addition, the oxygen levels in the blood were very low which highlights that Jessie's lungs were not working correctly."

12. By the next morning her condition had deteriorated. Her breathing was shallow and irregular. She was certified dead by Dr Kirk at 10.20am. In answer to the coroner's questions, he said:

"Q: Now as far as the injuries that you were aware of in Mrs Hall, did you feel that those injuries were significant enough to have themselves given rise for concern with regards to her mortality?

A: No. At the time her breathing was the problem, the major problem ...

Q: Now you have heard Dr Prescott say that as far as the fall and the injury is concerned the impact of that may have contributed but not caused the death. And as far as the contribution is concerned, he would suggest that it was not significant in terms of the mode of dying, nor indeed in terms of, if you like, the time of dying. Would you have any comment with regards to that as the person who treated?"

13. That question was not in fact, as I have demonstrated, an entirely accurate summary of Dr Prescott's opinion when his answers to Mrs Newbury's questions were taken into account. Dr Kirk's answer was:

"I would agree that the injuries were not immediately related to the death. Whether being more bed ridden made her more prone to deterioration from the pneumonia is possible.

Q: Now we have heard that, if you like, the fall took place at about 3.30, or thereabouts, and that death was 10 o'clock the following morning. So we are talking about possibly 17 hours or certainly not more than 17 hours [that is an insignificant misstatement of the time, it was in fact 19 hours]. In your medical opinion would that have been significant enough to have turned what might otherwise simply have been a pneumonia capable of being treated to a bronchopneumonia that would prove to be fatal?

A: I think from the pathologist's report and from the blood test it would seem it had been there for a while and this would have happened anyway.

Q: So from your point of view as a clinician?

A: Yes.

Q: Dealing pre-mortem, you would support the views expressed by Dr Prescott?

A: Yes.

Q: That, whilst the injury was a nasty injury, you would say that that was not the underlying cause of death?

A: No."

He went on to state that she had not lost a significant amount of blood, at any rate not so significant as to contribute itself to the death.

14. In answer to Mrs Cornah, who represented the Care Standards Authority, the supervising authority for the Home, he said:

"Clearly she was instantly immobilised and her body suffered a great shock. In your view would that have affected the process of the disease or not?

A: I do not think it would have affected the process. The infection was already set in the lungs and the fall could not have affected that process I don't think."

15. In summary, as stated in his witness statement and in evidence, his view was that the effect of the fall did not cause death, and he did not think that it affected the process of the disease which did, pneumonia.
16. The coroner invited submissions as to the verdicts which he should leave to the jury. Counsel for the Home submitted, briefly, that he should not leave accidental death or accidental death to which neglect contributed. In the event, he left both, plus natural causes and open verdict. The jury returned verdicts as set out in the inquisition, to which I have already referred.
17. The Home apply with leave for judicial review of the coroner's conduct of the inquest and the verdict reached, essentially on three grounds:

(1) The coroner should not have left accidental death, and/or accidental death to which neglect contributed, to the jury.

(2) There was insufficient evidence for the jury properly directed to return such a verdict.

(3) the coroner misdirected the jury as to neglect.

18. There is an additional ground that the summing-up was unbalanced, and so, unfair to the Home. I need say no more about that, save that a fair reading of the summing-up demonstrates that that submission is ill-founded.
19. The first of the three questions which I have identified can be broken down into two distinct but related questions. First, was there evidence upon which a jury could return a verdict of accidental death or accidental death to which neglect contributed? Secondly, if so, was the coroner entitled to leave the question or questions to the jury? The first of those questions is to be answered by reference to the test in R v Galbraith [1981] 2 All ER 1060 at 1062, in which Lord Lane said:

"How then should the judge approach a submission of 'no case'? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred.

There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge."

Lord Woolf CJ approved the Galbraith test as appropriate to inquests in R v Inner London Coroner ex parte Douglas Williams [1999] 1 All ER 344 at 349A

"The conclusion I have come to is that, so far as the evidence called before the jury is concerned, the coroner should adopt the Galbraith approach in deciding whether to leave a verdict."

He also went on to consider the second of the two sub-questions which I have identified. In the same report, at page 348H, he said:

"There is no prosecutor in relation to an inquest and, while an inquest is a court, the coroner's role is more inquisitorial, even when sitting with a jury, than that of a judge. A prosecutor has a considerable discretion as to what charges he prefers and the trial takes place on those charges. There are no charges at an inquest and the coroner must decide the scope of the inquiry which is appropriate and the witnesses to be summoned. He therefore must, at least indirectly, have a greater say as to what verdict the jury should consider than a judge at an adversarial trial."

20. On page 349B to C, he said:

"The strength of the evidence is not the only consideration and, in relation to wider issues, the coroner has a broader discretion. If it appears there are circumstances which, in a particular situation, mean in the judgment of the coroner, acting reasonably and fairly, it is not in the interest of justice that a particular verdict should be left to the jury, he need not leave that verdict. He, for example, need not leave all possible verdicts just because there are technically evidence to support them. It is sufficient if he leaves those verdicts which realistically reflect the thrust of the evidence as a whole. To leave all possible verdicts could in some situations merely confuse and overburden the jury and if that is the coroner's conclusions he cannot be criticised if he does not leave a particular verdict."

21. Thus, a coroner has a discretion in an appropriate case, and when the interests of justice require it, not to leave a verdict to a jury, even though on the Galbraith test there is sufficient evidence to support it.
22. As to the first of the two questions, the matter is one of judgment. If there is insufficient evidence, the coroner does not have a true discretion to leave it to the jury, in the sense that one coroner might choose to leave the matter to the jury and one might not do so; and the discretion of both is unchallengeable. If the Galbraith test is not satisfied, the coroner must withdraw the matter from the jury. Lord Lane's use of the word "discretion" in the celebrated passage must refer not to the exercise of a true legal discretion but to the word in its more general sense, "good sense".
23. In relation to the second sub-question, the coroner does have a true legal discretion, as Lord Woolf stated and as I have attempted to indicate. However, if the coroner chooses to exercise his discretion so as to leave to the jury a verdict in respect of which, applying the Galbraith test, there is a sufficiency of evidence, the cases in which the exercise of this discretion in that way can successfully be challenged on judicial review will be few (if any). In my judgment, the Galbraith test was satisfied here. As the coroner pointed out to the jury in the summing-up, it was entitled to ask whether a woman strong enough to move a settee at 3.20am on the 16th would be so affected by the progress of pneumonia as to die 19 hours later, and to prefer the opinion of Dr Prescott that death may not have ensued then, to that of Dr Kirk that it would. Once the Galbraith test was satisfied, the coroner was entitled to leave the question as to what (if any) extent death was caused, in the sense of contributed to in point of time, by the fall and the injuries, to the jury.
24. The answer to the second principal issue raised by the claimants is, in effect, answered by the first. If the Galbraith test is satisfied, then the jury were entitled to conclude that the fall contributed to death.
25. The coroner's summing-up on causation was impeccable and is not criticised, save as to alleged imbalance, to which I have already referred. As to neglect, the coroner said:

"Now the third conclusion that you have is accidental death to which neglect contributed. Now as far as that is concerned you would need to ask yourself a number of questions. Firstly, was Mrs Hall in a dependent position because of her infirmity such that she was unable to properly provide for herself and to care for her own well-being; secondly, had there been a gross failure to provide such support so that there was that provision for her well-being; and thirdly, was there a clear and direct causal connection between the failure and the death of the deceased."

I think the significant word in that is the word "gross" failure. As far as the evidence is concerned it seems to me that you would be entitled to conclude that Mrs Hall was a dependent person. She was dependent upon Longfield Residential Care Home. She was suffering from dementia and she required that establishment to provide for herself, her well-being. The question then is was there a failure. Well, you have heard that there was a requirement to have carried out a risk assessment specifically with regards to windows and the possibility of falls or climbing through windows, and that in making that assessment, which should have been committed to writing but wasn't, either there was a failure to appreciate the risk or if the risk was appreciated there were inadequate steps taken to safeguard against the risk, then it seems to me, members of the jury, that you would be entitled to find as a fact that that was a failure. What you have to ask yourselves is this, could that be described as a gross failure? Would it be right to say that an assessment would have been such that anybody ought to have appreciated that there was a serious risk and if that risk was not guarded against that there was [an ensuing] risk that Mrs Hall would suffer serious jury.

Finally, it comes back in fact to the first part, there must be a clear and direct causal connection between the failure and the death. Well, the failure in this case is a failure to prevent her climbing through the window and it seems to me that you would be entitled to say that the fall and the fracture to the elbow must have been, there must be a direct causal connection between those. So what you have to considered, if you get to that stage, is whether you consider such failure as there has been as being gross failure."

26. There is no criticism of the coroner's opening statements of the elements necessary to support a verdict of accident contributed to by neglect. But the remainder is, in my view, open to serious criticism. Neglect in this area of the law is a term of art, as Lord Bingham re-stated in R(Middleton) v West Somerset Coroner [2004] 2 WLR 800 at 815A. He explained it more fully in R v Her Majesty's Coroner for North Humberside and Scunthorpe ex parte Jamieson [1995] QB 1 at page 24G to 25D as follows:

"7. Cases arise, usually involving the old, the infirm and the senile, where the deceased contributes to his or her own death by a gross failure to take adequate nourishment or liquid, or to obtain basic medical attention, or to obtain adequate shelter or heating. In such a case it may be factually accurate and helpfully descriptive to state that self-neglect aggravated, or preferably contributed to, the primary cause of death. Rarely, if ever, can it be factually accurate or helpfully descriptive to regard self-neglect as the primary cause of death (that is, in the language of the cases, to adopt it as a free-standing verdict).

8. Much of the difficulty to which verdicts of lack of care have given rise appear to be due to an almost inevitable confusion between this expression and the lack of care which is the foundation for a successful claim in common law negligence. Since many of those seeking that verdict do so as a stepping-stone towards such a claim the boundary is bound to become blurred. But lack of care in the context of an inquest has been correctly described as the obverse of self-neglect. It is to be hoped that in future the expression 'lack of care' may for practical purposes be deleted from the lexicon of inquests and replaced by 'neglect'.

(9) Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect. So it may be if it is the dependent person's mental condition which obviously calls for medical attention (as it would, for example, if a mental nurse observed that a patient had a propensity to swallow razor blades and failed to report this propensity to a doctor, in a case where the patient had no intention to cause himself injury but did thereafter swallow razor blades with fatal results). In both cases the crucial consideration will be what the dependent person's condition, whether physical or mental, appeared to be."

Cases in which neglect may be found to have contributed to death by self-harm or accident will be rare and will arise only where neglect was gross and a clear or direct causal connection is established: see Lord Bingham's judgment at page 25H to 26A. That they can arise, however, is shown by the judgment in R v Her Majesty's Coroner for Birmingham ex parte the Secretary of State for the Home Department [1990] 155 JP 107, which was summarised in Jamieson at page 20B to 20F. One of the instances given was as follows:

" ... a verdict of lack of care could be appropriate in cases where not merely the deceased's physical condition, but his mental condition was the true cause of his death, as where a deranged man, incapable of forming any intention, and known to be in such a condition that he required constant care, is neglected and jumps through a window to his death."

27. The direction on neglect given by the coroner did not adequately meet Lord Bingham's test. It centred upon the lack of a risk assessment. The coroner identified that as the principle element of possible gross neglect, which the jury might wish to consider. It is conceded by Mr Hough, for the coroner, that, in so doing, he identified something which more accurately fell to be considered as negligence in civil law, rather than neglect in the law relating to inquests. In my judgment, his concession was right. The passage is, taken as a whole, only really capable of being read as being addressed to negligence. The jury may well have been misled by it into finding neglect where, in fact, what they were finding was negligence. This aspect of the verdict, dependent as it may well be upon this feature of the summing-up, cannot stand. Nor, in my view, can a simple verdict of accidental death. The situations considered by Lord Bingham in Jamieson did not include the circumstances which, by their finding, the jury found to have obtained here, namely death caused by the progress of a natural disease, when that progression was, or may have been, accelerated by accidental injury.
28. Here, a simple verdict of death by natural causes or accidental death is inadequate to describe that which the jury truly found. A remedy is now to hand. The coroner is not at all to be criticised for failing to apply it because it was only promulgated in R(Middleton) v West Somerset Coroner [2004] 2 WLR 800 by the House of Lords on 11 March 2004.
29. Middleton was concerned with a death in custody in which Article 2 of the European Convention on Human Rights was engaged. This factor led the House of Lords to conclude that the restrictive approach to the law as stated in Jamieson, that an inquest was only concerned with how death occurred and not with how and in what circumstances it occurred, could no longer be supported. But the comments made by the House are not restricted to verdicts in cases of death where the State may have had a hand and are of general application.
30. On pages 814C to 815B, Lord Bingham said:

"35 . Only one change is in our opinion needed: to interpret 'how' in section 11(5)(b)(ii) of the [Coroners] Act [1988] and rule 36 (1)(b) of the [Coroners] Rules [1984] in the broader sense previously rejected, namely as meaning not simply 'by what means' but 'by what means and in what circumstances'.

36. This will not require a change of approach in some cases, where a traditional short form verdict will be quite satisfactory, but it will call for a change of approach in others (paragraphs 30-31 above). In the latter class of case it must be for the coroner, in the exercise of his discretion, to decide how best, in the particular case, to elicit the jury's conclusion on the central issue or issues. This may be done by inviting a form of verdict expanded beyond those suggested in form 22 of Schedule 4 to the Rules. It may be done, and has (even if very rarely) been done, by inviting a narrative form of verdict in which the jury's factual conclusions are briefly summarised. It may be done by inviting the jury's answer to factual questions put by the coroner. If the coroner invites either a narrative verdict or answers to questions, he may find it helpful to direct the jury with reference to some of the matters to which a sheriff will have regard in making his determination under section 6 of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976: where and when the death took place; the cause or causes of such death; the defects in the system which contributed to the death; and any other factors which are relevant to the circumstances of the death. It would be open to parties appearing or represented at the inquest to make submissions to the coroner on the means of eliciting the jury's factual conclusions and on any questions to be put, but the choice must be that of the coroner and his decision should not be disturbed by the courts unless strong grounds are shown.

37. The prohibition in rule 36(2) of the expression of opinion on matters not comprised within sub-rule (1) must continue to be respected. But it must be read with reference to the broader interpretation of how' in section 11(5)(b)(ii) and rule 36(1) and does not preclude conclusions of fact as opposed to expressions of opinion. However the jury's factual conclusion is conveyed, rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular 'neglect' or 'carelessness' and related expressions, should be avoided. Self-neglect and neglect should continue to be treated as terms of art. A verdict such as that suggested in paragraph 45 below ('The deceased took his own life, in part because the risk of his doing so was not recognised and appropriate precautions were not taken to prevent him doing so') embodies a judgmental conclusion of a factual nature, directly relating to the circumstances of the death. It does not identify any individual nor does it address any issue of criminal or civil liability. It does not therefore infringe either rule 36(2) or rule 42."

31. In cases where the death results from more than one cause of different types, a narrative verdict will often be required. It is here. The jury's findings can be encapsulated by a verdict such as the following. I read out my proposed text so as then to invite counsel to amend it if they think it right. This is the draft and not the final version:

"Mrs Hall died of bronchopneumonia resulting from dementia. Her death was probably accelerated by a short time by the effect on her pneumonia of injuries sustained when she fell through an unattended open window, which lacked an opening restrictor, in the lounge of Longfield Residential Home on 16 April 2003."

32. It follows, for the reasons which I have given, that the inquisition should be quashed and amended so as to incorporate the narrative verdict which I have indicated should be substituted for the conclusion in paragraph 4, "accidental death to which neglect contributed".
33. I should add that I see no good purpose would be served by quashing the verdict and remitting the matter to the coroner to hold a fresh inquest before a fresh jury.
34. Do either of you have any comment on the narrative form of verdict that I have indicated?
35. MR SMITH: My Lord, I wonder if your Lordship would be so kind as to read it again.
36. MR JUSTICE MITTING: Certainly:

"Mrs Hall died of bronchopneumonia resulting from dementia. Her death was probably accelerated by a short time by the effect on her pneumonia of injuries sustained when she fell through an unattended open window, which lacked an opening restrictor, in the lounge of Longfield Residential Home on 16 April 2003."

37. MR HOUGH: My Lord, may I briefly take instructions from my client?
38. MR JUSTICE MITTING: Certainly.
39. MR HOUGH: My Lord, for my part and for my client's part, we are content with the phrasing as expressive of the various elements which are beyond doubt in what the jury were finding. In saying that, I do not mean to make any concession that we accept that neglect was not a proper part or could not have formed a proper part of the verdict in this case.
40. MR JUSTICE MITTING: I accept that that question remains unresolved by the form of verdict that I have proposed. I do so because, in my view, it is impossible to discern from the jury's verdict precise findings upon which a verdict of death to which neglect contributed might have been returned. I see no purpose in having a fresh inquest to determine that.
41. MR HOUGH: My client entirely agrees with that point. I simply make that caveat so that it not be suggested against me at any other stage that I am now accepting that either there was a material misdirection or that neglect could not form part of the verdict.
42. MR JUSTICE MITTING: I have held that there was a material misdirection, whether rightly or wrongly is not a matter for me to say, but that is an integral part of my judgment. But I have not found either way whether there was or was not neglect. I have simply been unable to reach a conclusion as a result of what I have found to be a misdirection on the question.
43. MR HOUGH: I appreciate those points. Subject to that, the phrasing is acceptable to my client.
44. MR JUSTICE MITTING: Thank you.
45. MR SMITH: My Lord, I would say very much the same thing about the phraseology. I have nothing to add or seek to amend in the phrasing and I have no other comment to make. Obviously my learned friend may be reserving his position in relation to neglect. I do not have the same comments to make on that, clearly. As far as the phrasing is concerned and the amendments to the inquisition is concerned, we are content and happy with the wording.
46. MR JUSTICE MITTING: Then my draft now becomes final. Now, are there any consequential matters?
47. MR SMITH: My Lord, there is one consequential matter which is that of costs.
48. MR JUSTICE MITTING: Now, there has been some recent learning from the Court of Appeal on that, has there not?
49. MR SMITH: I think your Lordship will find the most recent learning in the bundle provided by my learned friend, which is the case of Touche.
50. MR JUSTICE MITTING: No, there is a later one than that.
51. MR HOUGH: I think it is the case of Davis.
52. MR JUSTICE MITTING: It is a judgment of Brooke LJ in which he considered Touche, and indeed his own judgment from which he resiled in the light of Touche. I do not need to read it. I have read it recently and I do not need to have it cited to me extensively. The upshot is this, is it not, that where a coroner plays no part, or an informative part only, then no order for costs should be made against him -- leaving aside questions where he unreasonably refuses to consent to an order. But where he plays an active part, then he is to be treated as a party. It does not necessarily follow that costs will be ordered against him, but if he plays an active part and loses, then he would ordinarily expect to have an order for costs against him. He will be reimbursed by the local authority, who pay his salary.
53. MR HOUGH: My Lord, I do not seek to take advantage of any suggestion that I am here in an amicus capacity. I have, and my client has, defended the result of the inquest, as in the circumstances he was really bound to do. But what I would say is that an order for costs against him would be inappropriate when the prime issue and the issue on which permission for this judicial review was granted, and the issue which occupied the majority of the time, is an issue on which he has largely been successful.
54. MR JUSTICE MITTING: He has been successful on the causation question. I have upheld both his judgment that there was sufficient evidence to leave to the jury and the exercise of his discretion to do so.
55. MR HOUGH: Now, if we were concerning this in the context of a civil case, which it is, and an issue-based costs order, then he would recover the majority of his costs because, on the principal issues, he has been successful. Similarly, the misdirection point --
56. MR JUSTICE MITTING: You are not seeking an order for costs the other way though, are you?
57. MR HOUGH: My Lord, yes I am. I do have instructions to make that application and that is because, on all the key issues which were in dispute, the coroner was successful. On the one issue on which you found against him, the misdirection, that was a point which was not taken in the terms on which your Lordship found against the coroner in either the statement of grounds, the amended statement of grounds or the skeleton argument. It would be harsh for the coroner to be deprived of all or part of his costs because of a point taken against him at the stage of the judicial review hearing by the court, rather than by the opposing litigant.
58. MR JUSTICE MITTING: Is the order that you seek for the costs to be subject to a detailed assessment or do you have a costs schedule?
59. MR HOUGH: We do not have a costs schedule. Neither party has a costs schedule.
60. MR JUSTICE MITTING: Thank you. You have an application to defend and one to make.
61. MR SMITH: My Lord, yes. My Lord, in looking at the position, we have reached, having brought the challenge, we have effectively succeeded in the challenge to the verdict as it stood. For that reason, I can make a submission that we are entitled to our costs of having succeeded. In relation to the point in the grounds that were made in support of the application, objection was taken generically to the way in which the question of neglect was taken, perhaps without alighting independently on the one point that my Lord alighted upon in relation to the risk assessment. That was one part of the overall criticism that was made in relation to the summing-up and leaving to the jury the question of neglect. So it did form part of the argument that we had in relation to neglect. So to that extent, I say that we have, therefore, succeeded in relation to those grounds. I accept that we have not succeeded in relation to other grounds, but looking at the matter overall, we are the successful party.
62. My Lord, it may be that, having regard to the stance that has been taken by the coroner, and having regard to your Lordship's own findings, that if your Lordship feels it is not appropriate for me to have my costs or for me to have part of my costs, for there to be an order that there simply be no order for costs in relation to the application; that we bear our costs and the coroner bears his costs.
63. MR JUSTICE MITTING: Can you help me on whether there is any significant difference in the relative costs of arguing the issues upon which you have succeeded, which are the verdicts of accidental death and neglect, and those issues where you have not succeeded, which are whether or not it was proper to leave the question of whether the fall contributed to death to the jury?
64. MR SMITH: I think it would be very difficult to break down precisely because there is so much overlap in relation to certain areas.
65. MR JUSTICE MITTING: I ask because last time I made no order for costs where I gave a curate's egg of a judgment, I was held to have given a judgment of Solomon and that both Solomon and I had something to learn about the CPR.
66. MR SMITH: My Lord, I could not pretend to say precisely what the apportionment may be. It may be it is 50/50. It may be less one way or the other. I think it would be difficult to analyse, certainly on my feet, precisely the degree of time that may have been spent.
67. MR JUSTICE MITTING: Your broad brush view is, give or take a view percentage points, 50/50?
68. MR SMITH: As a broad brush, yes.
69. MR JUSTICE MITTING: Thank you.
70. MR HOUGH: My Lord, my client instructs me that he would be happy to consent to an order that there be no order as to either party's costs.
71. MR JUSTICE MITTING: I am glad to hear that because, despite my previous reverse, that was the conclusion that I had reached provisionally and which was confirmed by what I was told my Mr Smith, that it is in fact impossible to disentangle the costs of debating the various issues. This is a curate's egg of a judgment for both sides. Given that it is impossible to disentangle the costs of arguing each issue, it seemed to me that the only just order is that there should be no order for costs between the parties.
72. Any other applications?
73. MR HOUGH: No, My Lord.
74. MR JUSTICE MITTING: Including an application for permission to appeal?
75. MR HOUGH: I am not instructed to make such an application.
76. MR JUSTICE MITTING: Thank you.