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COSTS AGAINST CORONERS
On 27 February 2004, the Court of Appeal in R (Davies) v Birmingham Deputy Coroner (No 2) [2004] EWCA (Civ) 207, [2004] 3 All ER 543, declined to follow its own decision in R (Touche) v Inner North London Coroner [2001] QB 1206 on the issue of when it was right to order the coroner to pay the costs of the successful applicant for judicial review.
In the original High Court proceedings the claimant's application for judicial review had been dismissed with costs. She appealed to the Court of Appeal, which on 2 December 2003 ([2003] EWCA Civ 1739) allowed her appeal.
The claimant, legally aided, asked the Court of Appeal to order the deputy coroner to pay her costs at first instance and on appeal. The deputy coroner asked that the costs order in his favour at first instance be not disturbed and that there be no order as to costs of the appeal.
The court held that the judge had held in favour of the deputy coroner correctly on the law as it then was (although by the time of the appeal it had moved on), and hence it would be unfair to require the deputy coroner to pay the claimant's costs at first instance On the other hand, the deputy coroner need not have appeared on the appeal, and, having lost, should pay the claimant's costs of the appeal.
On the matter of principle, the Brooke V-P (with whom Longmore LJ and Sir Martin Nourse agreed) held (para 47) that:
"(i) The established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings;
(ii) The established practice of the courts was to treat an inferior court or tribunal which resisted an appliaction actively by way of argument in such a way that it made itself an active party to the litigation, as if it was such a party, so that in the normal course of things costs would follow the event;
(iii) If, however, an inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction, procedure, specialist caselaw and suchlike, the established practice of the courts was to treat it as a neutral party, so that it would not make an order for costs in its favour or an order for costs against it whatever the outcome of the application.
(iv) There are, however, a number of important considerations which might tend to make the courts exercise their discretion in a different way today in cases in category (iii) above, so that a successful applicant, like Mr Touche, who has to finance his own litigation without external funding, may be fairly compensated out of a source of public funds and not be put to irrecoverable expense in asserting his rights after a coroner (or other inferior tribunal) has gone wrong in law, and there is no other very obvious candidate available to pay his costs."
And then (para 49):
"Needless to say, if a coroner, in the light of this judgment, contents himself with signing a witness statement in which he sets out all the relevant facts surrounding the inquest and responds factually to any specific points made by the claimant in an attitude of strict neutrality, he will not be at risk of an adverse order for costs except in the circumstances set out in paragraph 47(i) above. In those circumstances the court may be obliged to request the assistance of an advocate to the court, as Simon Brown LJ suggested in Touche."
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Last modified: Monday, 09-Aug-2004 08:53:11 BST by: Malcolm Bishop