40. The claimant's challenge is based upon the following grounds. Firstly, it is submitted that in permitting PC Graham to read out the statements he had obtained from "L", "C" and Mr Ashby, and in admitting the statement of the pathologist and toxicologist, the Coroner acted in breach of rule 37. There was no suggestion that the makers of these statements were unable to give oral evidence within a reasonable time, (see rule 37(2)), and the Coroner's own notes demonstrate that the requirements of rule 37(3) were not complied with. Before admitting the evidence, the Coroner did not give a brief account of the documents, tell the family that, as persons within rule 20(2), they could object to the admission of evidence in documentary form, and did not tell them that they were entitled to see a copy of the documents if they wished. The purpose of rule 37(3)(d) was to enable a rule 20(2) party to see the documentary evidence so that he could make an informed decision as to whether to object to the information contained therein being admitted in that form rather than by way of oral evidence. The suggestion that the documents might be provided "afterwards" (after the close of the inquest) was of no practical assistance in that regard.

41. The family, having no prior knowledge of what was in the documents, could not sensibly do anything other than object to their being received in evidence and ask for a witness or witnesses to be called to give oral evidence.

42. In R v Southwark Coroner, ex parte Hicks [1987] 1 WLR 1624, Groom-Johnson LJ, having referred at page 1629 C-D to the "safeguards and restrictions on the use of documents" contained within rule 37 said that:

"The use of and reference to documents is therefore narrowly circumscribed."

43. At page 1638 B Peter Pain J, dealing with a suggestion that a doctor should have been allowed to read certain notes, said this:

"For myself I would not regard it as a suitable course unless the notes recorded matters about which there was no dispute. On any issue that required more careful examination it would be right to have oral evidence from the person who made the note.

In dealing with the records that were not in court, the coroner outlined the difficulties that might occur and said:

'The mere administrative exercise of bringing documents to court from elsewhere might well have occasioned adjournment of the inquest to a different day. This would have meant reconvening the inquest with a new jury and therefore starting afresh.'"

44. The judge continued:

"I cannot accept this reason. It is the duty of a coroner to make proper inquiry, no matter the inconvenience that may be caused in doing so.

The coroner reiterates the possibility of inconvenience in dealing with witnesses when he said:

'In considering the question which arose during the inquest of calling additional medical witnesses I again weighed the assistance which they could possibly give against the dislocation of the inquest which calling them would have entailed. Had these witnesses been in the corridor outside the court I would have permitted them to be called. As they were not, to call them would have meant adjournment to a new date and in practice reconvening with a different jury.'"

45. Peter Pain J continued:

"It seems to me that since the coroner would have permitted the calling of the witnesses, they were witnesses whom he regarded as relevant. To exclude relevant witnesses in order to avoid an adjournment cannot possibly be justified."

46. Ms Hatfield accepts that the court would not exercise its discretion to quash the inquisition if there had been a "technical" breach of rule 37, for example, if documentary evidence that was not in fact disputed was admitted without there having been any inquiry as to whether there was any objection from a rule 20(2) person. But, in the present case, she submits as her second ground of challenge that the Coroner's reliance upon documentary evidence resulted in an investigation which was "superficial, slipshod or perfunctory" (see Jamieson at page 26 (above)). She acknowledged that Catherine's death did not take place in custody. It did, however, occur in a bail hostel which purportedly specialised in the treatment or management of drug abuse. Indeed, the deceased had been remanded in custody in view of the lack of an available bail hostel which had appropriate facilities in view of her vulnerability as a young drug user. It was only upon the finding of a place in the Ashford House Bail Hostel that the deceased was on 10th December 1999 granted conditional bail to reside there. The apparent ease with which she obtained drugs whilst a resident at this hostel, and the apparent ignorance of first aid procedures displayed in the statement of the hostel manager Mr Ashby were, she submitted, very relevant to the question of how Catherine came by her death, and required the calling of live witnesses. Further, the "acute public concern" recognised by Sir Thomas Bingham in Jamieson would apply with equal, if not greater force, to deaths in such a hostel, designed as it must have been as a route out of custody for vulnerable young drug users.

47. She referred to the Divisional Court's decision in the R v HM Coroner for Coventry, ex parte O'Reilly unreported 6th March 1996, in which Newman J said at page 9F of the transcript:

"As to whether a sufficient enquiry has taken place ... I take, as a simple starting point, that an inquiry which leaves too many questions unanswered and too many issues unresolved is not a sufficient enquiry."

48. In the light of the Coroner's assertion on the eve of the inquest that the material he had seen suggested there to be a "lack of competence" and "differing and ignorance of facts", his refusal to call any witness to give oral evidence at the inquest left "too many questions unanswered and too many issues unresolved." An inquest which confined itself solely to reading statements from the very witnesses described as lacking competence, being ignorant and offering differing accounts, could not be described as a sufficient inquest.

49. Specifically, the following questions were left unanswered:

(1) Could the very high level of free morphine in Catherine's blood as revealed in the toxicological report be reconciled with the evidence that she had, or had purchased for her, only ,,5 or ,,15 worth of smack?

(2) How was it that she was able to acquire, and inject, a fatal quantity of heroin in a bail hostel with expertise in dealing with drug abuse?

(3) The court had placed her on a 6pm-6am curfew, what system of supervision was in operation at the hostel to ensure (so far as reasonably practicable) that its "no drugs" policy was being obeyed?

(4) What checks were made on her mental state or physical condition at the hostel? On the evening of Catherine's death her mother had telephoned the hostel because she was concerned about her daughter's health, she was reassured by a female officer. Was that reassurance given as the result of any enquiry?

(5) Was Catherine still alive when she was discovered slumped on the floor, might her life have been saved by prompt and effective first aid, did staff at the hostel have any training in first aid to equip them to deal with the consequences of drug overdosage by residents?

50. Ms Hatfield submits that all of these questions are relevant for the purpose of deciding how the deceased came by her death. The answer to questions (1) and (2) might lead on to the further question whether this might have been a case of unlawful killing. Recognising the difficulty in establishing such a verdict she nevertheless submitted that questions (1) to (5) were all relevant matters for the Coroner to consider in deciding whether or not to make a recommendation under rule 43.

51. She accepted that the Coroner had a discretion under rule 43, but submitted that he could not lawfully decide whether to exercise that discretion unless he had conducted a sufficient investigation.

52. Turning to the question of disclosure, she accepted that the Rules do not provide for pre-inquest disclosure and that the Coroner's contention that rule 57(1) related to post-inquest disclosure was correct.

53. In R v HM Coroner at Hammersmith, ex parte Peach QB 211 the Divisional Court rejected a submission that denial of a witness statement in advance of an inquest was a breach of natural justice. Lord Widgery CJ said at page 219:"It is important, I think, to stress that, as far as I know, there never has been a case in which natural justice was invoked through the denial of documents except when the person to whom the documents had been denied was a person against whom some charge was being made. It is elementary that, if a charge is being made against a person, he must be given a fair chance of meeting it. That often means he must be given documents necessary for the purpose. But there is no charge here being made against Mr Peach, the applicant, and to my mind, try as he will, he fails to get himself in through any of these doors."

54. On appeal, the Divisional Court's decision on the substantive issue was reversed, but the challenge to the refusal to provide witness statements in advance of the inquest was not pursued, so the Court of Appeal did not have to consider whether natural justice might require prior disclosure.

55. In Hicks (above) the court rejected a submission that the Coroner should have disclosed prison medical notes before an inquest. It did so at least partly for the reason that the use of and reference to documents was "narrowly circumscribed" by rule 37 (see above). At page 1637 Peter Pain J said this:"I had the impression initially that Mr Blom-Cooper was complaining about the failure of the coroner to provide material before the inquest. But it appeared from the argument as it proceeded that this was not so. The authority of Reg v Her Majesty's Coroner at Hammersmith, ex parte Peach (Nos. 1 and 2) QB 211 makes it plain that there was no right in the family to call for documents. Nor was there any obligation on the coroner to assist Dr Fenwick with the hospital notes that he required as a basis for an opinion."

56. Ms Hatfield submits that there is a growing practice of advance disclosure of, at the very least, the post mortem report and list of witness statements. She points to the practice of voluntary disclosure since 1999 by Her Majesty's Prison Service where inquests are held into deaths in custody. The benefits of advance disclosure were recognised by Newman J at page 12A of the O'Reilly case. In some circumstances fairness may require advance disclosure particularly where, as in the present case, the Coroner proposed to rely on documentary evidence alone. No reason had been given for non-disclosure in advance of the inquest, or at the start of the inquest.

57. Finally, she submitted that the Coroner's decision to have the witness statements read demonstrated that the evidence contained therein was of relevance to the inquest. The Coroner had not given any reason for not requiring the witnesses, or some of them, for example, Mr Ashby, to give oral evidence. His statement at the conclusion of the inquest that "the witnesses that were there have been looked upon and viewed as not competent, and indeed conflicting, and also drug users" did not justify his not calling them to give evidence. The same approach could be seen in the Coroner's "observations" dated 15th February (insofar as they were admissible).

58. It was for the Coroner, not PC Graham, to assess the credibility, reliability and consistency of potential witnesses. The fact that witnesses might give conflicting evidence was certainly not a reason for not calling them, though it might well be a reason for calling them.

59. For these reasons she submitted that the inquisition should be quashed and a fresh inquest held by a different coroner. Because of the inadequacy of the investigation to date, the outcome of a fresh inquest could not be certain. She accepted that it could not be said that a fresh inquest would be likely to lead to a different verdict, but submitted that this was not the appropriate test. The most recent Court of Appeal authority dealing with this aspect of the case is Douglas-Williams (above) in which Lord Woolf said this at page 347e:

"When it comes to exercising this discretion I cannot suggest a better test for a court to apply when deciding whether it should give relief than that it should be 'necessary or desirable to do so in the interest of justice'. The test has to be applied against the background of the statutory functions of an inquest now contained in the 1998 Act and Coroners Rules ... and bearing in mind the further guidance given in R v Divine, ex p Walton [1930] 2 KB 29 at 37...:

'The court is not to attend to mere informalities, nor to criticise minutely the summing up, or the nature of the evidence or of the procedure. But if the inquest has been so conducted, or the circumstances attending it are such, that there is a real risk that justice has not been done, and a real impairment of the security which right procedure provides that justice is done and is seen to be done, the court ought not to allow the inquisition to stand.'

It will not be in the interests of justice to set aside an inquest on the basis of a misdirection if the misdirection would not have affected the outcome. This was made clear in R v Wolverhampton Coroner, ex p McCurbin [1990] 2 All ER 759 at 767."

60. This was not a misdirection case, the inquest had been so perfunctory as not to amount to a sufficient investigation.

Conclusions

61. I accept the submissions advanced on behalf of the claimant for the following reasons.

62. There has been no suggestion from the Coroner that the claimant (as one of the deceased's family) was not a person falling within paragraph (2) of rule 20. Whilst it is true that an inquest is an inquisitorial, and not an adversarial procedure, the Rules clearly envisage that persons falling within rule 20(2) have a role to play in the investigation. They are entitled to examine witnesses, subject to the coroner's right to disallow irrelevant or improper questions.

63. The request for advance disclosure was, on the face of it, a perfectly reasonable one. Certainly, no reason has been advanced by the Coroner as to why it should have been refused. The fact that the Rules do not require advance disclosure is not a sufficient answer. There is an overriding obligation to conduct the inquest in a fair manner. The requirements of natural justice, or fairness, are not immutable. What was considered a fair procedure 20 years ago may well be regarded as unfair by today's standards. By way of example, the view that fairness very often requires the giving of reasons for a decision has been steadily gaining ground over recent years.

64. The Coroner had a discretion to permit advance disclosure of, for example, the post mortem report and the toxicological results. He had to exercise that discretion fairly, with a view to furthering the purpose of the inquest: to ascertain how Catherine came by her death, and bearing in mind the claimant's entitlement to participate in the investigation under rule 20. It is difficult to see how the claimant could effectively exercise his rights under rule 20 if he was kept in complete ignorance of the most basic facts until the commencement of the inquest.

65. The proposition that a person will not be able to participate in proceedings in an effective way in the absence of advanced disclosure is increasingly recognised: see, for example, the changes made by the Civil Procedure Rules in ordinary civil litigation, the provisions of the most recent Town and Country Planning Inquiry Procedure Rules as an example of the way in which disclosure is dealt with in the field of Administrative Tribunals and Inquiries, and the provisions for greatly increased disclosure in criminal proceedings.

66. In R v Criminal Injuries Compensation Board, ex parte Leatherland and others (unreported, transcript dated 2nd July 2000), Turner J said this of the Board's long standing policy of refusing to disclose to the claimants in advance of the hearing witness statements made by the police and available to the Board:

"Any practice which leads to the withholding of material until the day of any judicial or quasi-judicial hearing is calculated to be to the significant disadvantage of the party from whom they have been withheld ... The argument that any injustice can be cured by the grant of an adjournment is nothing to the point. An adjournment may, or may not be granted, and even if granted will involve a represented appellant in extra costs and delay before final resolution of his appeal ... When the straightforward step can be taken of making available to a party to the appeal material which, it is conceded he will be entitled to receive in any event, it makes no sense at all to say that he must wait and take his chance with obtaining an adjournment of his appeal from the Panel."

67. Under the Rules, if documentary evidence is proposed to be admitted at an inquest, persons falling within rule 20(2) will become entitled to see a copy by virtue of rule 37(3(d). Without advance disclosure they may be placed at a significant disadvantage. In my judgment, the need for advance disclosure is not answered by the proposition that an inquest is an inquisitorial procedure. As mentioned above, persons falling within rule 20 have a role to play in the procedure. The requirements of fairness should reflect that role. It may well mean that in some cases there is less need for advance disclosure, or that advance disclosure need not be so extensive. But it does not follow that there is no need, in the interests of fairness, for any advance disclosure, particularly if the Coroner intends to rely on documentary evidence alone.

68. The decision in Peach, relied on by Peter Pain J in Hicks, is now over 20 years old, and the Court of Appeal did not have to consider the applicant's complaint relating to advance disclosure. Following the hearing on 28th February, Ms Hatfield drew my attention to a recent decision of the Divisional Court, R v HM Coroner for Lincoln, ex parte Hay reported in Lloyd's Law Reports (Medical) 2000 at page 264. In that case, complaint had been made of failure to disclose statements taken by the police, and a witness list. Unlike the present case, where no explanation has been forthcoming as to why it was not possible to respond to the claimant's requests for advance disclosure, the Divisional Court was provided with a great deal of evidence about the practice and practicalities of providing advance disclosure (paragraphs 42-44). The court in that case concluded:

"the decision ... in Peach on non-disclosure of statements taken by the police still represents authority which this court should follow."

69. The court went on to consider in paragraph 45 an alternative submission that a list of witnesses should have been published. It:

"was unwilling to fetter the discretion of a coroner by being at all prescriptive about the procedures he should adopt in order to achieve a full, fair and thorough inquiry."

70. The Court noted that matters were under consideration by the Home Office and did not wish to pre-empt the outcome of those discussions. Brooke LJ, giving the judgment of the court, continued as follows:

"Experience in other contexts, such as civil and criminal trials and planning and other inquiries, has shown that attention to points of detail in advance of a hearing often pays rich dividends, particularly by eliminating the need for avoidable adjournments. We are therefore sure that it would be helpful if the Coroners' Society were to publish guidance to coroners about the different pre-hearing techniques which have been found to have been useful in different contexts, including Mr Fitzgerald's idea of circulating a list of the witnesses the coroner provisionally intends to call, accompanied by a short summary of the gist of the witness' evidence. The adoption of this course would have avoided some of the difficulties which arose in the present case. We are not, however, prepared to rule that any such procedures should be obligatory, even in an inquest of this kind. Subject to the need to obey the requirements of the Act and the Rules, it is for each coroner to decide how best he should perform his onerous duties in a way that is as fair as possible to everyone concerned, as well as doing his best to reduce the number of avoidable adjournments."

71. I do not read Lord Widgery's dicta in Peach as authority for the proposition that refusal of any form of advance disclosure to a person falling within rule 20 can never amount to a breach of natural justice. That view is confirmed by the observations of Brooke LJ in paragraph 46 of the Hay case. The court should not be prescriptive. The requirements of fairness will vary from case to case. In Peach, the Coroner's refusal to disclose statements taken by the police was found not to have been a breach of natural justice on the facts of that case, according to the standards of fairness that prevailed at that time. It will be noted that Peach was not a case where the Coroner proposed to rely upon documentary evidence alone and was refusing to disclose that documentary evidence in advance; it was a case where it was proposed to call witnesses to give live evidence.

72. In the present case, the claimant's request was supported by reasons which have not been gainsaid by any explanation from the Coroner, whether before, during or after the inquest. In the circumstances, I think it proper to draw the inference that there was no good reason for refusing the claimant's request: see the authorities discussed in paragraph 9-056 of De Smith Woolf & Jowells Judicial Review of Administrative Action. There was unfairness because the refusal of any advance disclosure (even of the post mortem report) meant that the claimant would inevitably be disadvantaged in seeking to participate in the inquest as he was entitled to do under rule 20.

73. That unfairness could easily have been rectified if the Coroner had acceded to the perfectly reasonable suggestions of the claimant's solicitors, that counsel would attend court early to read the documents, and of counsel herself, that she should be given copies of documents before they were read out by PC Graham. There is no evidence that adopting either of those courses would have caused any practical difficulty (or the kind referred to in Hay) whatsoever.

74. The requests were refused, again no explanation has been provided. I infer that there is none. The procedure adopted by the Coroner, PC Graham reading out the statements with no copies being provided, clearly placed the claimant's counsel at a disadvantage. When she tried to object, her objections were brushed aside. The Coroner has not answered counsel's witness statement. I regret to have to say that the impatience referred to in counsel's witness statement is evident from the Coroner's own notes. The unfairness to the claimant thus continued and was compounded by the manner in which the Coroner dealt with the admission of documentary evidence. The contention in his "observations" that rule 37 was complied with by the statements being read out at the inquest cannot be sustained.

75. Paragraph (6) of rule 37 requires any documentary evidence admitted under the rule to be read aloud at the inquest, unless the Coroner directs otherwise. But the evidence has first to have been properly admitted under the rule. The Coroner does not suggest that he formed the opinion that the evidence was "unlikely to be disputed" (see paragraph (1) of rule 37). Even if he had formed that view, documentary evidence could not be admitted in the face of an objection on behalf of the claimant unless the Coroner was of the opinion that the makers of the statements were "unable to give evidence within a reasonable period".

76. There is no suggestion to that effect. The fact that it might be inconvenient to call a witness is not a ground for admitting documentary evidence under rule 37: see Hicks (above). It is plain from the Coroner's own notes of the inquest that the requirements of paragraph (3) of rule 37 were not complied with. Offering to provide a copy of the documents only after they had been admitted in evidence did not amount to compliance with 37(3)(d). The person entitled to examine witnesses under rule 20 is entitled to be given a brief account of the document, under paragraph (3)(b)(ii), to enable him to decide whether he wishes to see it under (3)(d), because only then will he be in a position to make an informed decision, in response to the coroner's announcement under (3)(c), as to whether or not he wishes to object to it being admitted as evidence in that form.

77. It is clear from the Coroner's "observations" that the statements were admitted as documentary evidence under rule 37. In the Hay case (above) one of the issues was whether the Coroner was right to rule that notes of police interviews could not be admitted because of the provisions of rule 37 (see paragraphs 58-62 of the Divisional Court's judgment). In that case there was no objection to the admission of the notes and "appropriate evidence" could have been given by the interviewing police officers. Apart from reading out the statments under rule 37(6) PC Graham was unable to assist the inquest.

78. Does is matter that rule 37 was not complied with? In my judgment, the answer plainly must be "yes". Section 8 of the Act reflects the "acute public concern rightly aroused where deaths occur in custody" (see per Sir Thomas Bingham at page 26 of Jamieson). In the present case, the deceased did not die in custody, but the reason why she was not in custody was because she had been remanded on conditional bail to this particular bail hostel upon the basis that it had expertise in dealing with the problems posed by drug abusers. Moreover, she was under a curfew, which at the relevant time required her to be within the hostel.

79. The Coroner's letter dated 18th April 2000 stated that the (documentary) evidence before him suggested "lack of competence, differing (sic) and ignorance of facts". One would have thought that "lack of competence" and "ignorance of facts" at an institution where a young person was compelled to reside by a court order would be a matter of grave concern, not simply to the deceased's family, but to the wider public. In paragraph 3 of his observations the Coroner said "It would seem that if she was determined to obtain the drug, then there was ample opportunity for her to do so."

80. The question, how was it that a young heroin user had "ample opportunity" to obtain an apparently massive dose of heroin whilst under curfew in a specialist bail hostel where she was compelled to reside because of its particular expertise in dealing with such problems, cried out for an answer. Was there any, and if so, what system of supervision to ensure that residents complied with the hostel's "no drugs" policy. Given the degree of persistence and ingenuity shown by many drug abusers it would be wholly unrealistic to expect more than an imperfect degree of compliance with such a policy, but could steps be taken to improve its enforcement?

81. What checks, if any, were made by staff on residents such as the deceased who were known to be in a vulnerable position? When did Catherine die? Was she still alive but unconscious when discovered by "L"? Might she have been saved by prompt and effective first aid? Was Mr Ashby or any other member of staff at the hostel given any first aid training to deal with the consequences of one of their residents taking a drug overdose?

82. As Lord Woolf pointed out at page 348a of Douglas-Williams (above) "an inquest's verdict can have a significant part to play in avoiding the repetition of inappropriate conduct and in encouraging beneficial change."

83. Moreover, as with a death in custody, this inquest was the family's only opportunity of ascertaining what happened to Catherine.

84. When counsel referred to the possibility of a recommendation under rule 43, the Coroner answered that the powers under rule 43 "are at my discretion and my discretion alone." That is true, but it is not a sufficient answer. The Coroner has to equip himself, by carrying out a sufficient investigation, by investigating the relevant facts "fully fairly and fearlessly", with material on which he can decide "whether action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held".

85. In the present case, the Coroner did not attempt to discover whether such material existed. The questions identified on behalf of the claimant (above) were all left unanswered. The Coroner has a discretion as to the persons "whom he considers it expedient to examine" by rule 11(2). But that discretion must be exercised fairly, and for the purpose for which it is conferred, namely the making of a sufficient investigation into the matters prescribed by rule 36.

86. The right conferred by rule 20 to examine witnesses is rendered nugatory if witnesses with relevant information are not called to give evidence; hence the "very circumscribed" powers to admit documentary evidence in the face of an objection by a rule 20(2) person (see above).

87. Once it became apparent that PC Graham could not assist, counsel asked for an adjournment so that oral evidence could be given, for example by Mr Ashby. The Coroner gave no reason for refusing this request, and none has been given since. I infer that there was no good reason.

88. The Coroner's observation that it was "abundantly clear from the officer's evidence that [the evidence of the 'resident' witnesses] was likely to be unreliable in view of the fact that they were all drug users" does not provide a proper reason for not hearing oral evidence. There was no suggestion that Mr Ashby was a drug user or that his evidence would be unreliable. As for the evidence of "L" and "C", it is the Coroner's obligation under the Rules to examine persons who may be able to give relevant evidence, and to form his own view as to their credibility and the reliability of their evidence. He may not decline to hear witnesses simply on the basis of a police officer's assessment of their reliability. That would be to abdicate his own responsibility to conduct a proper investigation into the matters referred to in rule 36.

89. In view of the matters set out above, it is not surprising that the claimant and other members of the deceased's family left the inquest on 19th April 2000 feeling that the Coroner's investigation was "superficial, slipshod or perfunctory", and moreover that the proceedings had been conducted in a manner that was, at worst obstructive towards their attempt to participate under rule 20, and at best dismissive of the points which they wished to raise which were matters of legitimate concern not merely to the deceased's family, but to the wider public.

90. In those circumstances I have no doubt that, applying the test in Douglas-Williams, which I have set out above, it is necessary in the interests of justice to quash the inquisition and to order a fresh inquest under a different coroner.

Costs

91. Ms Hatfield asked for the claimant's costs. The claimant is legally aided, but that should make no difference to the exercise of my discretion.

92. She referred to the following passage in Jervis on the Office & Duties of Coroners 11th edition at paragraph 19-16:

"The basic rule [where the Coroner loses], derived from cases involving magistrates' courts and other inferior tribunals, is that if a coroner does not appear at the hearing, and (although he has been found to be in the wrong) he has done nothing calling for strong disapproval, then the court will not make an order for costs against him. But if he has done something calling for strong disapproval, then the court may make a costs order against him. If the court is minded to make such an order, then the court should give the absent coroner the opportunity to attend to make representations."

93. In the 4th supplement to that work the learned editors note that this explanation of the position has been overtaken by the Divisional Court's decision in Re Clegg [1996] 161 JP 521, in which the court awarded costs against a coroner who had filed an affidavit but was not represented saying that the (unsuccessful) applicant had not acted unreasonably in making the challenge. Phillips LJ said that:

"It is a case where the inquest did not do the job an inquest should normally do, of reviewing the relevant facts and, in those circumstances, we consider it just that an Order should be made that the Applicant should have his costs."

94. In R v HM Coroner for Kent, ex parte Johnstone 6 Med LR 116, the Divisional Court ordered a coroner, who had been represented, to pay the applicant's costs, McCowan LJ saying this at page 127:

"Let me make it quite clear that this is not a case which we regard as one calling for strong disapproval of the coroner's actions, but some measure of blame we have attached to him. I am not sure that blame has anything particularly to do with it. He has sought to defeat the challenge to his decisions. Certainly he was not represented in the role of amicus curiae, or anything of that nature. The challenge was hard fought. If he had won, I have no doubt that he would have been seeking his costs and would have been entitled to them. He has lost. The applicant is not legally aided. We are unable to recognise any principle that says that in those circumstances some special protection should be given to the coroner."

95. In the Lincoln case to which I have referred, Brooke LJ gave a lengthy judgment dealing with the question of costs. In that judgment he stated that the passage from Jervis which I have set out above sets out correctly what the practice of the judges in the Divisional Court has been for many years in a case of this type where an application for costs is made against a coroner. He referred to the case of Johnstone and stated that McCowan LJ had applied the principle that where the Coroner appears and fights the case, and loses, then he may be liable to pay costs. He also referred to the case of Clegg but said that:

"... on that occasion the court went much further than its established practice and made an order for costs against a coroner who merely swore an affidavit and took no part in the proceedings at all. In my judgment, that order, although no doubt made 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 in any way."

96. Brooke LJ continued:

"In my judgment, the situation is quite different from the situation here when a coroner is carrying out his important statutory duty to conduct an inquest. In this context the relevant principle appears to be that if a coroner not only files an affidavit but also appears and contests the making of an adverse order in an inter partes adversarial mode, then he or she is at risk as to costs. If, on the other hand, the coroner, as is fitting for somebody holding judicial office, swears an affidavit to assist the court and then appears in court, more in the role of an amicus than as a contesting party, then the court is likely to follow the normal rule set out in Jervis and make no order as to costs provided that it does not express strong disapproval of his or her conduct."

97. In the present case, the Coroner has not been represented in opposition to the claimant's application, but neither has he indicated any willingness to submit to a consent order. Indeed, he has not accepted that any of the claimant's complaints about his conduct are justified in any way. Following the authorities to which I have referred above, there may well be cases where the coroner, having assisted the court with affidavit evidence as to the facts as appropriate, is content not to be represented, but to stand back and to abide by the court's decision on some disputed point of law or procedure. In such circumstances, it is most unlikely that an award of costs against the coroner would be appropriate. But in the present case, far from seeking to assist the court, the Coroner failed to make any response to the judicial review proceedings served on him on 6th November 2000 until his letter dated 6th February 2001. That letter did not give any indication as to whether he proposed to file evidence, or whether he opposed the application for judicial review, and if so, upon what grounds. The letter containing the Coroner's "observations" was not sent to the claimant's solicitors until 15th February, despite repeated reminders. If the Coroner was on holiday, arrangements should have been made so that a response could have been made in the proper form and in due time on his behalf. Although unsupported by any witness statement and not sent to the court, the Coroner's "observations" do make it clear that he continues to contest the claimant's challenge, contending that rule 37 was complied with and that he was justified in not calling witnesses to give oral evidence. In effect, the Coroner was seeking, through the vehicle of his "observations", to resist the application although he did not propose to be represented. I regret to have to say that the Coroner's attitude to the claimant's application in this court mirrors his approach to the claimant both before, and during the inquest. His conduct does therefore call for "strong disapproval".

98. Lest this conclusion be thought to be unduly harsh, this is a case where, for the reasons set out above, "the inquest did not do the job of an inquest. " The Coroner did not stand aside and adopt a neutral position. He sought through the belated submission of his "observations" to defend the claim made against him. Applying the dicta in the cases to which I have referred, I am satisfied that even if "strong disapproval" is not warranted it would be appropriate to award costs against him in these circumstances.

99. A matter that has concerned the court in other cases is the extent to which the coroner will be indemnified by his appointing authority. There is no indication on the material before the court that the Coroner will not be indemnified by his appointing authority, but to guard against that possibility I shall give the Coroner 28 days liberty to apply to the court in relation to the costs order made against him. The 28 days is to commence from the date on which the Coroner is served by the claimant's solicitors with a copy of the approved transcript of this judgment. Any application is to be made in writing in the first instance, and the Coroner is to send a copy of any representations he chooses to make to the court to the claimant's solicitors.

MS HATFIELD: My Lord, I do ask for legal aid assessment.

MR JUSTICE SULLIVAN: We do not have a copy of the certificate on file. If you undertake to produce it or produce it now then that can be dealt with. On your producing the certificate to the associate, you may have legal aid assessment.

Thank you very much for your assistance.

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Last modified:  Monday, 09-Aug-2004 08:53:02 BST by: Malcolm Bishop