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Cite as: [2009] CP Rep 25, [2010] 2 WLR 746, [2009] EWHC 312 (QB), [2010] 1 QB 256, [2010] QB 256, [2009] 3 All ER 510

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		Neutral Citation Number: [2009] EWHC 312 (QB)
		Case No: QB/2008/APP/0401 QB/2008/PTA/0173

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE SUPREME COURT
COSTS OFFICE
PTH/0801034

Royal Courts of Justice
Strand, London, WC2A 2LL

25 February 2009

B e f o r e :

THE HONOURABLE MR JUSTICE DAVIS
Sitting with Assessors (Master Wright and Mr Robert Carter)
____________________

Between:


	GERALD LAURENCE ROACH (1) - and - JEAN ROACH (2) - and -	Claimants
	THE HOME OFFICE	Defendant
	- and - FRANCES MATTHEWS - and - THE HOME OFFICE	Claimant Defendant

____________________

Mr Andrew Post (instructed by Hodge Jones & Allen) for the Claimants (Roach)
Mr Martin Westgate (instructed by Bhatt Murphy Solicitors ) for the Claimant (Matthews)
Mr Jeremy Morgan QC and Mr Benjamin Williams (instructed by The Treasury Solicitor) for the Defendant (The Home Office)
Hearing dates: 3 and 4 December 2008
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice Davis :

Introduction

These are two costs appeals and one cross-appeal. Each case raises a point of principle as to whether costs of attending an inquest can be recovered by way of costs in subsequent civil proceedings. The paying party in each case (the Home Office) says that they never can be so recovered. The receiving parties say that they can be.

The background facts giving rise to these appeals and cross-appeal can be relatively shortly stated for present purposes.

Roach

Craig Roach was arrested for shoplifting on 16 January 2004. He was taken to Yeovil police station. He was a heroin addict and informed the police of this. He was examined by the force medical examiner and prescribed medication. He appeared before the Magistrates Court on the morning of 17 January 2004 and was remanded in custody. He was taken to HMP Exeter at around 1.30 p.m. His last dose of medication had been provided at the police station at around 8.00 a.m. He was prescribed different medication by a prison doctor, administered at around 4.00 p.m. His condition deteriorated and at around 5.00 p.m. he was found to have harmed himself by cutting his wrists, his cellmate having alerted prison staff. He was taken to a health care unit where his wound was treated. He was eventually moved to another cell, at around 7.30 p.m., his cellmate having complained about his behaviour. When there he rang repeatedly asking for more medication. He was told that there was no further medication due. He was then at around 0.40 a.m. placed in a single cell, with video monitoring and 30 minute watches. He continued to ring the bell but was told that there was no entitlement as there was no medical emergency. At around 5.00 a.m. on 18 January 2004 he was found to have hanged himself from his bed, using bed sheets as a ligature. He was declared dead at 5.55 a.m., all attempts at resuscitation having failed.

The inquest into his death was not held until 5 March 2007. It lasted some 14 days. The jury delivered a narrative verdict on 27 March 2007. Included in the narrative verdict were findings that Craig Roach was suffering psychologically from the effects of withdrawal at the time he was placed in the single cell and that prison staff were not specifically trained in dealing with prisoners who were detoxifying from drugs and alcohol.

The parents of Mr Roach approached a charity which was involved, among other things, with issues relating to deaths in custody. The charity recommended them to consult a firm of solicitors (Hodge Jones and Allen). Those solicitors instructed counsel to attend the inquest. Exceptional funding was obtained from the Legal Services Commission with effect from 17 January 2005, the family being required to make a contribution. Solicitors and counsel were present throughout the inquest; counsel had also attended a number of pre-inquest hearings directed by the coroner. It is common ground that the remuneration payable under legal aid would be in a significantly lesser amount than that recoverable (if allowed) for the same work if claimable as costs of and incidental to civil proceedings.

In December 2004 the Home Office had been put on notice of a proposed civil claim. An extension of the limitation period was agreed to 3 months after conclusion of the inquest. After the inquest a formal and detailed letter before claim dated 12 April 2007 was sent. That asserted, among other things, that the defendant's failure to provide adequate safeguards had caused unnecessary suffering. There was no substantive response and proceedings were issued on 22 June 2007 in the Central London County Court by Craig Roach's parents, Gerald Roach and Jean Roach: Gerald Roach being expressed to sue both on his own behalf and as personal representative of Craig Roach deceased. A Conditional Fee Agreement was made on 22 August 2007, with a success fee of 100%.

Craig Roach had no dependants. The claim form sought damages of not less than £5,000 but not more than £15,000. Damages were claimed not only under the Law Reform (Miscellaneous Provisions) Act 1934 but also under Sections 7 and 8 of the Human Rights Act 1998 (by reference to Articles 2, 3 and 8 of the Convention); and for negligence.

In due course an offer of £10,000 was made and it was accepted in September 2007. A Consent Order was made in the Central London County Court on 3 October 2007, providing for payment of the £10,000 and including an order that the defendant pay the claimants' reasonable costs, to be assessed if not agreed.

The Bill of Costs in due course submitted by the claimants' solicitors was in the sum of £67,126.85. The great proportion of that (some 90%) was attributed to the attendance of counsel and solicitors at the inquest. The defendant challenged the reasonableness of such bill. Amongst various points of objection there was objection to the claimed costs and disbursements in the form of costs of (London) counsel and solicitors attending the inquest on behalf of Mr and Mrs Roach. A proposal by the Home Office of £450 per day for counsel's attendance only, by way of watching brief, was made: this was disputed by the claimants, as receiving parties.

In the event the matter came before Master Hurst, the Senior Costs Judge. He gave his decision on 29 May 2008. It will be necessary in due course to refer to aspects of his judgment. He decided that the receiving parties should have one-half of the inquest costs, subject to reduction thereafter in respect of certain items.

Permission to appeal was granted by the Senior Costs Judge to both parties on 29 May 2008, limited to the issue of whether and to what extent the costs of and incidental to the inquest were recoverable as costs of and incidental to the civil claim.

Matthews

Anna Baker (the daughter of Frances Matthews) was remanded in custody and placed in HMP Styal on 1 November 2002. She was known to be addicted to drugs. On arrival at prison, she was assessed as posing a relatively low risk of self-harm. She was placed on the prison's relevant withdrawal detoxification programme. This was, however, terminated on 8 November 2002. She was then prescribed antidepressants but in due course these too were withdrawn. Her behaviour deteriorated from 9 November 2002.

On 7 November 2002, a cellmate had reported that Anna Baker had tried to hang herself. She was relocated to a secure cell and then to an ordinary cell. Her behaviour was unpredictable. On 25 November 2002 she requested the supports of a "listener"; also on that day she wrote to her boyfriend implying that she was feeling suicidal. She was reassessed as posing a high risk of self-harm; but notwithstanding that was placed in an ordinary cell, with bunk beds.

She was subject to hourly checks. She was also taken to the segregation unit for adjudication. She was returned to her cell. At 12.30 on 26 November 2002 she was given a letter from her boyfriend. Her cell was not checked again until 13.50: she was found hanging by a ligature made of strips of towel, attached to the upper bunk. She was pronounced dead at 14.25. It was said that she was one of 14 women to die at HMP Styal in 2002.

The claimant (Mrs Matthews) entered into a Conditional Fee Agreement with her retained solicitors, Bhatt Murphy, on 19 January 2004, with a 90% success fee. In due course exceptional funding was obtained from the Legal Services Commission on 17 March 2004 for attendance at the inquest. Counsel and a fee earner from the solicitors attended the inquest throughout: it lasted from 8 to 17 November 2004. The jury returned a narrative verdict: this among other things recorded failings on the part of the prison service, including a "total lack of awareness and staff training" in the management of persons at risk of self-harm and suicide.

On 9 December 2004 a very detailed letter of claim was sent to the defendant, asserting a claim in negligence and also asserting breaches of Articles 2 and 3 of the Convention.

Liability was in due course conceded. A protective claim form was issued in the High Court in November 2005, Mrs Matthews suing both on her own behalf and as personal representative of Anna Baker. A consent order, in Tomlin form, was lodged on 10 May 2006 and pronounced on 26 May 2006. This provided for payment of £20,000 by the defendant. In addition it was ordered that the defendant pay the claimant's costs, to be subject to a detailed assessment if not agreed.

In due course the claimant's solicitors lodged their Bill of Costs. A total of £91,952.09 (inclusive of VAT) was claimed. Of this £43,573 (+ VAT) related to the costs and disbursements involved in counsel and a fee-earner attending the inquest (the amount allowed for that under the exceptional legal aid funding had been £17,742 + VAT). As in the Roach case, the defendant (paying party) in its points of dispute held the position that no more than the cost of briefing local counsel on a noting brief at the inquest should be allowed: although this thereafter seems to have hardened into an objection to any costs of attending at all being allowed.

That issue was decided as a preliminary issue by Deputy Master Rowley on 19 November 2007. He decided in principle that the claimant was not precluded from recovering costs of her representation at the inquest as part of the costs of her subsequent civil claim; and he also decided that the fact that the claimant had been publicly funded, by way of exceptional funding, for the inquest did not alter that.

Permission to the defendant to appeal was granted by Henriques J on 24 April 2008.

The Law

It was common ground before me that there was no power available to the coroners to make an award as to costs of those inquests. So far as the civil proceedings are concerned, the position is governed by section 51 of the Supreme Court Act 1981 (as amended). That, in the relevant respects, reads as follows:-

"S.51 Costs in civil division of Court of Appeal, High Court and county courts

(1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in:

a) the civil division of the Court of Appeal;

b) the High Court; and

c) any county court,

shall be in the discretion of the court.

(2) Without prejudice to any general power to make rules of court, such rules may make provision for regulating matters relating to the costs of those proceedings including, in particular, prescribing scales of costs to be paid to legal or other representatives [or for securing that the amount awarded to a party in respect of the costs to be paid by him to such representatives is not limited to what would have been payable by him to them if he had not been awarded costs].

(3) The court shall have full power to determine by whom and to what extent the costs are to be paid.

… ."

It was accepted in the cases before me that the orders for costs made in the proceedings were to be taken as including costs of and incidental to the proceedings, the assessments being on the standard basis. By CPR 44.4(1), it is to be noted, costs will not be allowed "which have been unreasonably incurred or are unreasonable in amount".

Mr Westgate, on behalf of Mrs Matthews, submitted, correctly, that the wording in section 51 is wide. He submitted that Parliament has deliberately conferred a broad discretion on the court; and for that reason alone it is not permissible for there to be an absolute exception to, or restriction on, the operation of the section of the kind advocated by the paying party (the Home Office) here. It is correct that, as stated by Lord Goff in Aiden Shipping Company Limited v Interbulk Limited [1986] AC 965 at p.975H, 980H, it is difficult to accept that a limitation can be implied into these statutory provisions. But Lord Goff also observed at p.975 E-G dealing with the statutory provisions in their then form:-

"In these circumstances, it is not surprising to find the jurisdiction conferred under section 51(1), like its predecessors, to be expressed in wide terms. The subsection simply provides that 'the court shall have full power to determine by whom … the costs are to be paid'. Such a provision is consistent with a policy under which jurisdiction to exercise the relevant discretionary power is expressed in wide terms, thus ensuring that the court has, so far as possible, freedom of action, leaving it to the rule-making authority to control the exercise of discretion (if it thinks it right to do so) by the making of rules of court, and to the appellate courts to establish principles upon which the discretionary power may, within the framework of the statute and the applicable rules of court, be exercised."

Mr Jeremy Morgan QC (who, with Mr Benjamin Williams, appeared on behalf of the defendant paying party) was thus entitled to invite the court to have regard to legal authorities to the extent that they lay down principles which bear on this issue.

There is no doubt at all that costs incurred prior to proceedings are capable in principle of being recoverable as costs in the proceedings. That has long been established. The principle has been widely stated to this effect:-

"… there is power in the Master to allow costs incurred before action brought and if the costs are in respect of materials ultimately proving of use and service in the action, the Master has discretion to allow these costs."

See Société Anonyme Pêcheries Ostendaises v Merchants' Marine Insurance Company [1928] 1KB 750 at p.757 (per Lord Hanworth MR); Frankenburg v Famous Lasky Film Service Limited [1931] 1 Ch.428.

Mr Morgan placed reliance on Wright v Bennett [1948] 1 KB 601. In that case, a barrister had been given a noting brief at the trial of an action. In that capacity, he was supplied with copies of documents, the costs of which were in the event disallowed by the taxing master. There was an appeal on the substantive issues decided at trial: on the appeal, the barrister who had had the noting brief at trial was instructed as junior counsel on the appeal (being led by trial counsel who had since taken silk). The same documents were used for the purposes of the appeal. On appeal, the Court of Appeal disallowed the costs of those documents. Somervell LJ (with whom Scott LJ and Asquith LJ agreed) stated at p.606, applying a previous authority and interpreting the then Rules, that:-

"The wording of that rule … shows that one has to treat proceedings below as a separate proceeding, for this purpose, from the proceedings here … [Counsel] has a strong case for saying, applying that decision, that these costs were incurred in respect of the proceedings below and therefore, cannot be recovered under the order of the Court of Appeal as to costs."

Mr Morgan sought to rely on that decision as binding authority for the proposition that costs incurred in a prior proceeding can never be recovered in a subsequent proceeding. But I do not think he can stretch the decision in Wright v Bennett so far for present purposes. The position there was that the documents had come into existence for the purpose of the lower court proceedings. That lower court had power to make an order as to the costs of those documents and had done so, expressly disallowing the costs of the documents. But it was held that no fresh disbursement was needed for those documents to be used on appeal and that the cost of those documents had not been incurred for the purpose of the appeal itself: hence they were not recoverable as costs of the appeal as ordered by the Court of Appeal. That is a much narrower outcome than the very broad principle which Mr Morgan advances would suggest.

In Department of Health and Social Security v Envoy Farmers Limited [1976] 1 WLR 1018 the position was in some respects rather closer to the present cases. There civil proceedings were instituted. In the course of those proceedings, an issue was identified which, under the provisions of the National Insurance Act 1965, could only be determined by the Minister. The Act gave no power to the Minister to award costs of determining such matters. The litigation was stayed in order to obtain the Minister's decision. That decision proved to be favourable to the defendant, which in consequence went back to the court and asked for the stayed action to be dismissed with costs. The Master did so, ordering the Department to pay the costs "to include the costs of and incidental to the inquiry held pursuant to a reference to the Secretary of State for Social Services of a question for determination".

Jupp J reversed that costs order. He referred to the statutory provisions in question and concluded (p.1021G):-

"In my judgment, therefore, whilst the costs of getting the matter referred are costs incidental to the court proceedings the costs of the fresh proceedings then taken, that is to say the inquiry before the Secretary of State, are not incidental to the court proceedings. They are, as indeed the order under appeal itself stated, incidental to the proceedings before the Secretary of State … ."

He went on to refer to contrasting situations arising under the court's own procedures and said (p.1021 H):-

"In this case, by contrast, the machinery is set up by Act of Parliament independently of the courts, and the proceedings have to be taken by means of that machinery because the court's jurisdiction is excluded."

Mr Morgan submitted that is likewise the case here. The inquest here was required to take place by reference to the Coroners Act 1988 and would have done so irrespective of any civil claim. It is not a court proceeding and Parliament has not given coroners power to award costs. The costs incurred were incidental to the inquest but not to the civil proceedings; and the courts cannot, in consequence, make an order for their recovery as costs of and incidental to the subsequent civil proceedings. I shall have to come back to that submission.

Next I was referred to the well known case of re Gibson's Settlement Trusts [1981] 1 Ch.179. This is an important case because it seeks to marshall a number of relevant authorities and to set out some principles or guidelines (since widely followed) to be applied in assessing whether costs incurred for work done prior to any civil proceedings being commenced may be recoverable as costs of and incidental to the proceedings. In the course of his judgment, Sir Robert Megarry VC referred to a number of cases, including Pêcheries Ostendaises; Wright v Bennett (which the Vice-Chancellor explained at p.185D); and Envoy Farmers. His review of the authorities led him to conclude that there were at least three "strands of reasoning" to be applied: that of proving of use and service in the action; that of relevance to an issue; and that of attributability to the [paying parties'] conduct (p.186 H). He then helpfully explained that at some length.

There was then cited to me Aiden Shipping Company Limited v Interbulk Limited (to which I have already made reference). That case is, of course, best known for the decision by the House of Lords that section 51 of the 1981 Act confers jurisdiction on the court, in its discretion, to make orders for costs against persons who are not party to the proceedings in question. But Mr Morgan's principal purpose in his citation of this authority was in reliance on the decision of the Court of Appeal reported at [1985] 1 WLR 1222. In that case, shipowners made a claim against charterers. The charterers in turn made a claim against their sub-charterers. The claims went to arbitration. In due course, the owners sought by legal proceedings to widen the scope of the remission in the head charter arbitration; the charterers in consequence brought like proceedings to widen the scope of the remission in the sub-charter proceedings (it being in due course held that the charterers were, as a practical matter, "bound" to take this similar action to protect themselves: p.1225B). The two sets of legal proceedings were, all the same, separate proceedings which were not ordered to be consolidated. In due course the owners failed in their legal proceedings to widen the scope of the remission, and consequently the charterers failed in their own legal proceedings against the sub-charterers. The judge at first instance made an order requiring the shipowners to pay the charterers' costs "such costs to include any costs paid by the charterers to the sub-charterers in the sub-charter proceedings". It was held in the Court of Appeal that he had no power to do so, on the true interpretation of section 51. As put succinctly by Sir John Donaldson MR at p.1226 B-D:-

"Section 51 of the Act of 1981 is the source, and the only relevant source, of any jurisdiction which the court may have to make the order for costs impugned in this appeal. The wording is extremely wide, but is subject to two inter-related limitations. The first, which is expressed, is that the costs concerned are 'of and incidental to' proceedings in the High Court. The second, which is implied, is that the court does not have an unlimited jurisdiction to order any citizen to pay the costs of a successful litigant, regardless of whether that citizen has any connection with the proceedings in which the costs were incurred. The charterers were ordered to pay the sub-charterers' costs 'of and incidental to' the proceedings in respect of the sub-charter award. The owners were not party to those proceedings. The charterers' liability was indeed consequential upon the proceedings in respect of the head charter award, to which the owners were parties, but it was not part of the costs of or incidental to those proceedings."

The House of Lords, while reaching a different conclusion (interpreting section 51 as empowering a court to make an order for costs against non-parties), agreed that the costs ordered to be paid by the charterers to the sub-charterers could not be regarded as costs "incidental" to the shipowners' legal proceedings against the charterers: see at p.1061 G-H (per Lord Mustill).

Then I was referred to the unreported case of Contractreal Limited v Davies [2001] EWCA Civ 928, a decision of the Court of Appeal. The facts were very different from the present cases. In that case, there were proceedings under section 81 of the Housing Act 1996. By the terms of the section the appellant landlord could not seek to forfeit in respect of unpaid service charges unless (among other things) the amount was agreed or determined by the court. It was said that the costs of legal proceedings to determine the service charges were recoverable as costs "incidental to" the forfeiture proceedings. One submission made by the respondents – amongst many others – was to the effect that costs in one set of proceedings could not be incidental to the costs of other proceedings; reliance being placed on the Court of Appeal decision in the Aiden Shipping case (see paragraph 30 of the judgment). So a proposition corresponding to that of Mr Morgan in these cases was being deployed. Arden LJ reviewed the various authorities and at paragraph 41 said this:-

"41. So those authorities show that the expression 'of and incidental to' is a time-hallowed phrase in the context of costs and that it has received a limited meaning, and in particular that the words 'incidental to' have been treated as denoting some subordinate costs to the costs of the action. If [counsel for the landlord] was right in this action it would mean that the costs of some very substantial proceedings would be treated as costs of and incidental to other proceedings."

The final reported case, on this aspect of the argument, to which I was referred was the decision of Clarke J (as he then was), sitting with assessors, in The Bowbelle [1997] 2 LL.Rep. 196: the report as placed before me containing neither headnote nor list of cases cited. That case involved a review of costs arising out of the tragic collision in the River Thames in 1989 between the Bowbelle and the Marchioness, in which 51 people died. One of the items claimed was the costs of attending the inquest. Clarke J at p.207 referred to re Gibson's Settlement Trusts and to the three strands of reasoning (described as "three prongs") there set out. Clarke J rejected an argument on behalf of the paying parties that no costs of the inquest were recoverable. Clarke J did hold that not all the costs of attending the full inquest could fairly be regarded as of and incidental to civil proceedings against the shipowners: because negligence had by then been conceded. Likewise, he said that no costs relating to the cause of the collision (which the claimants wished to be investigated with a view to possible criminal proceedings) could be regarded as costs of and incidental to the proceedings against the shipowners. Clarke J went on, however, to say this:-

"However, it does not follow that no costs of attending the inquest are recoverable. In the event, when the inquest was opened, the Director of Public Prosecutions delivered a notice of intention to prosecute the master of Bowbelle so that the coroner did not proceed with an inquiry into the causes of the collision. The inquest which took place at that time dealt with identification of the deceased, where they were found and the causes of death. The steering committee attended the inquest through Counsel, who was Mr Haddon-Cave. Master Hurst held that it was reasonable for the steering committee to take that step in order to help to establish what pre-death pain and suffering had been endured by those who lost their lives. A forensic pathologist was called in the case of each of the deceased and he was cross-examined by Mr Haddon-Cave on behalf of the steering committee. Master Hurst held that it was reasonable for the steering committee to co-ordinate the claimants, to instruct Counsel and to attend the inquest. I agree. That evidence was potentially relevant to the loss of life claims. It follows that, unless there are particular costs which are not fairly referable to the attendance at the inquest for that purpose, reasonable costs of attending the inquest are in my judgment recoverable. At present there is no basis for holding that Master Hurst's approach to the figures was in any way wrong."

This is, as Mr Morgan accepted, authority directly against the proposition for which he was arguing. But his submission is that such decision was per incuriam (the Court of Appeal decisions in Wright v Bennett and, in particular, Aiden Shipping apparently not being cited to Clarke J); and at all events he submitted that it was wrong and I should not follow it.

The judgments under appeal

Both Costs Judges gave detailed reasoned judgments.

(1) Roach

In the case of Roach, the Senior Costs Judge set out the underlying facts. He referred to various authorities, including The Bowbelle. He also referred to two other decisions of costs judges: that of Master Gordon-Saker in King v Milton Keynes General NHS Trust (13 May 2004: SCCO Ref. AGS 04000350) and Master O'Hare in Stewart v Medway NHS Trust (6 April 2004: SCCO Ref. HQO 2X03849). In both cases the costs judges, after fully reviewing the authorities, decided that costs of attending an inquest were (subject to reasonableness) capable of being incidental to a subsequent civil action. As stated by Master Gordon-Saker after a review of the authorities:-

"28. In each of these cases the costs were disallowed because they were not 'incidental to' the proceedings before the court. I do not read any of these decisions as identifying a principle that the costs of one set of proceedings cannot be recovered as costs 'incidental to' another set of proceedings if they are in fact 'incidental to' those proceedings.

29. It seems to me that the costs of attending an inquest (and asking questions) can be recoverable as costs incurred in the subsequent proceedings if the purpose – or material purpose – of attending is to obtain evidence for the subsequent proceedings."

Master O'Hare's reasoning in the Stewart case was to like effect. He stated that the "true rule" was demonstrated by the decision in the Bowbelle and that costs of an inquest can be of and incidental to another action.

The Senior Costs Judge went on to express his conclusion on this point in these terms at paragraph 25:-

"Mr Post argued that the approach in King [was] inconsistent with that in the Bowbelle, and he pointed out that in this case liability had not been admitted prior to the inquest, nor were the family attempting to achieve a criminal prosecution. He argued that the purpose of attending the inquest was purely inquisitorial in nature and undertaken solely for the purpose of obtaining information and evidence for use in subsequent civil proceedings. I cannot accept this last submission, since it is clear that both Hodge Jones & Allen and Mr Brown were instructed with the benefit of exceptional funding from the LSC and it is clear to me that the role of the legal representatives at the inquest can fairly be said to fall in to two equal parts, namely assisting the coroner at the inquest; and secondly obtaining the evidence necessary to pursue the civil claim. I accept Mr Post's submission that the subject matter of the inquest and of the civil claim was virtually identical. The inquest costs should therefore be divided equally."

He proceeded also to conclude, however, that it was not reasonable for the attendance of London solicitors and counsel for an inquest held in the West Country and reduced the rates accordingly. He also reduced the success fee. He considered proportionality but indicated in paragraph 41 of his judgment that, given his decision that only half of the inquest costs could be recovered (and given also his further reductions of charging rates for representation and the success fee), his conclusion was that the resultant costs were not disproportionate; and accordingly that a test of reasonableness was applied.

The claimants as receiving parties appeal against the decision to award only half the inquest costs (before further deduction). The Home Office, as paying party, raises by way of Respondent's Notice, for which I gave leave out of time, its challenge by way of point of principle as to whether the Senior Costs Judge had jurisdiction to award any costs of attending the inquest as costs of and incidental to the civil proceedings.

(2) Matthews

In the case of Matthews, the Deputy Costs Judge also fully reviewed the relevant authorities. He said this at paragraphs 22 and 23:-

"22. I respectfully agree with Clarke J and Masters O'Hare and Gordon-Saker, that costs incurred in respect of an inquest are, as a matter of principle, potentially recoverable against a defendant in subsequent claims for damages subject to the relevance and reasonableness of the individual items. Otherwise it would seem that a witness, for example the officer who investigated the death, could be interviewed at length by the claimant's solicitors in their offices and no argument would be raised by the defendant when the cost of that attendance was subsequently claimed. But if that evidence was provided at an inquest the claimant could not seek recovery of those costs notwithstanding the fact that the defendant would probably save money in the concentrated nature of the evidence being given before the coroner and which might otherwise take a considerable time to be amassed by the claimant's solicitors.

23. Accordingly I find in relation to issue 1 that costs in relation to the inquest are recoverable as costs of and incidental to these proceedings. I make no decision as to the individual items claimed in the bill in relation to their reasonableness and proportionality or indeed whether any specific item is relevant for the purpose of pursuing that claim."

As to the relevance of public funding at the inquest he said this at paragraph 37:-

"37. Whilst the public funding was for the assistance of the coroner it was inevitable in my judgment that one of the purposes for the attendance at the inquest was to gather evidence for a potential civil claim. It may not be the coroner's function to produce evidence relating to fault when seeking to find facts for questions he needs to answer. Nevertheless all interested parties keep an eye out, and indeed ask questions, for purposes outside those of the coroner."

And he also went on to say at paragraph 51:-

"51. Does this then lead to the conclusion that there is an overlapping between the LSC and private funding arrangements? In my judgment it does not. The agreements abut each other to ensure that no costs reasonably incurred fall through the gap between them. If the costs can be properly ascribed to furthering the civil proceedings then they are claimed against the defendant. If they cannot, they are claimed from the Commission. The fact that the costs claimed against the defendant in respect of the inquest are claimed without a success fee is simply a bonus to the defendant."

He thus concluded that costs were recoverable whether or not they had also potentially been recoverable under a public funding certificate.

The Submissions