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R. v. LINCOLNSHIRE CORONER, EX PARTE HAY
Judgment of the Divisional Court (Brooke L.J., Forbes J.) on costs, given on 19 February 1999 in Court 66, Royal Courts of Justice. [For main judgment, click here.]
N.B.: this is an unofficial note, and has not been approved by the court or by the parties.
Edward Fitzgerald Q.C. and Jonathan Glasson, for the applicant
Alison Hewitt, for the respondent
Peter Spink (Samantha Leek on taking judgment), for the Home Office
Brooke L.J.: The application is allowed for the reasons already handed down to the parties, and the Order made that is referred in those reasons.
Mr Fitzgerald QC: Applies for his costs. It is not necessary, in order for the court to order the coroner to pay the costs, to have a case where there is strong disapproval of the coroner’s actions. Where the coroner contests the proceedings and there are grounds for quashing the inquest, then costs should follow the event.
Brooke L.J.: How do you get over the consistent line of authorities going back over 100 years?
Mr Fitzgerald QC: Refers to R v Newcastle under Lyme Justices, ex parte Massey [1994] 1 WLR 1684. [Case report handed up].
Brooke L.J.: Is the application opposed?
Miss Alison Hewitt: Yes.
Mr Fitzgerald QC: Referred to Ex parte Massey at page 1685A-E, where the principles are stated.
Brooke L.J.: Where a rating or charging authority applies for an order before the justices, the justices have to be parties to any application to the High Court, but the lis is between the chargor and chargee. Here the coroner is under a statutory duty to hold an inquest. This is quite different. Which passages of the judgment in Massey do you rely on?
Mr Fitzgerald QC: Pages 1691D-G, where the cases are analysed, and 1693D. The test is whether it is an appropriate case for an order to be made against the justices, where they have acted unreasonably in all the circumstances.
Brooke L.J.: This is a totally different situation. The justices are adjudicating in civil proceedings. If they filed an affidavit, there would be no question of risk as to costs, but if they turn up as judges to fight their corner in the High Court, they are at risk. The difference with the coroner is as different as chalk and cheese.
Mr Fitzgerald: I accept that, but the matter was looked at again in R. v. Maidstone Coroner’s Court, ex parte Johnstone [1995] 6 Med. L.R. 116 and Re Clegg (1996) 161 J.P. 521.
Brooke L.J.: In Johnstone the applicant was not legally aided. The coroner was entering into the lists, and the court could make an order in the exercise of its discretion. Clegg is outwith any principle of Crown Office practice that I am aware of. The Divisional Court treated it as private inter partes litigation.
Mr Fitzgerald: I rely on Clegg as to whether there is a general principle as to whether the coroner should pay the costs: see at page 537H.
Brooke L.J.: This is all very well, but Jervis shows that there was a line of authorities a mile long. [He referred to Webster J. and the submissions of Mr Simon Brown in R. v. West Yorkshire Coroner, ex p. Smith].
Mr Fitzgerald: If you analyse what Mr Simon Brown was saying....
Brooke L.J.: Clegg must be wrong, because the coroner did not appear, but made an affidavit.
Mr Fitzgerald: Yes.
Brooke L.J.: In Johnstone at 125, McCowan L.J. says that the applicants were out of pocket so they should have their costs from somebody. Parliament however will not in this case allow orders for costs out of public funds.
Mr Fitzgerald: The argument we put is that there is so much criticism of wasted legal aid funds. If the legally aided applicant is successful, then the Fund should get its costs back. There should not be a distinction between the legally aided and the not legally aided applicant. I don’t accept that the long line of cases in Jervis proves any point.
Brooke L.J.: I appeared at the Bar for 25 years in the Crown Office, and the practice stated by Webster J. was the practice.
Mr Fitzgerald: The test has to be, how did you conduct the proceedings?
Brooke L.J.: How hard did you contest the lis?
Mr Fitzgerald: Where the coroner puts in an affidavit and makes no concessions, it is hard to say that he has not caused the lis. If the coroner turns up then it is his fault there has to be an argument.
Brooke L.J.: But then you get one sided litigation. Sometimes these applications are phenomenally difficult, and you need an amicus.
Miss Alison Hewitt: I have three submissions. The first is that there is the long line of authorities for the coroner not being ordered to pay costs, and there is good reason for them.
Brooke L.J.: To what extent did you enter into the lists? There were some signs of fighting your corner. I re-read your affidavit just before coming into court and it was not the normal affidavit just setting out the facts.
Miss Hewitt: I said at the outset that the coroner was concerned only to assist the court. It is unfair to suggest that there were no concessions. For example, in relation to self incrimination. What I was trying to do was to point out that the coroner had tried to short cut the difficulties in relation to that. In a number of respects there was no contention and the applicant did not win on all the points argued. The submissions I made were made to highlight the difficulties in the case. The coroner was facing four legal representatives with differing interests. The coroner was saying: "This was what I was thinking". So far as Clegg was concerned, the court had no power to award costs at all, as section 13(2) (which gives power) only applies where the section applies, and by section 13(1) that is only where the court is satisfied that there should be a new inquest, which was not the case.
Miss Samantha Leek: No application.
Judgment
Brooke L.J.: In this matter Mr Fitzgerald quite properly asks for costs in favour of his legally aided client. He has helpfully submitted a note drawing the attention of the court to recent authorities which suggest that it is appropriate to make such an order. The usual practice is clearly set out in Jervis on Coroners, 11th edition 1993, at page 348:
"If the coroner does appear at the hearing, and loses, then the court has a discretion whether to order the coroner to pay the successful applicant’s costs, even though he acted reasonably. But such an order has only rarely been made..."
In my judgment, that clearly sets out the practice of the judges of the Divisional Court for many years. In the transcript of R. v. West Yorkshire Coroner, ex parte Smith, quoted in Re Clegg, at page 536, Webster J. said this:
The first is Ex parte Johnstone. In that case, it was clear that the Divisional Court was troubled that the applicant was not in receipt of legal aid. McCowan L.J. said that where the coroner appears and loses, he may be ordered to pay the costs.
That was followed in Clegg. There the court received written submissions about costs. There was no oral argument. Miss Hewitt points out that since the court refused to make an order under the Act, there was no power to order costs: see section 13(1). Be that as it may, the court went further than the established practice. In my judgment that practice, though no doubt followed because the court was concerned about its inability to make an order out of public funds in favour of the applicant, did not follow the established practice of the court.
Mr Fitzgerald has shown an analysis of the position with justices in civil proceedings: Ex parte Massey. That is quite different. In such cases the justices are adjudicating between the citizen and the authority. Rose L.J. said that if the justices appear by counsel to resist the making of the order then they were at risk as to their costs. In my judgment that is quite different from the situation here. So the principle appears to be that if the coroner files an affidavit and appears to strongly resist the order being made, in adversarial mode, he will be at risk as to costs. But if he swears an affidavit to assist the court, and appears more in the role of amicus, the court will follow the normal practice and will not order the coroner to pay the costs.
In this case Miss Hewitt and her client nearly went too far. It goes without saying that the court is greatly assisted by a coroner who swears an affidavit and appears by counsel to assist the court. In this case we are also indebted to the Secretary of the Coroners’ Society, who swore an affidavit. If the coroner had not been represented in this case, that affidavit would not otherwise have been available.
In this case I do not think it right to make an order for costs. The line of cases however shows up an urgent need for Parliament to allow costs to be ordered out of public funds in cases where the applicant is put to expense to obtain an order setting aside the inquest, but if the court made an order against the coroner simply because there was no power to order out of public funds, that would lead to the disadvantage that the courts would be less likely to get the advantage of the assistance of coroners. Whether or not the coroner obtains an indemnity from his local authority as to costs takes the matter no further. Unless the coroner does something calling for strong disapproval, he should not be ordered to pay the costs. There will be a legal aid taxation.
Forbes J.: I agree.
Solicitors: Strachan St George, for the applicant; Treasury Solicitor, for the Home Office
[Reported by Paul Matthews]
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Last modified: Monday, 09-Aug-2004 08:53:12 BST by: Malcolm Bishop