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The recoverability of inquest costs in civil actions

The case of Fullick v The Commissioner of Police of the Metropolis [2019] EWHC 1941 (QB) concerned an appeal of a Deputy Masters order that the MET Commissioner pay the claimants’ costs in the sum of £88,356.22, following the settlement of a contemplated civil claim for damages for breach of Article 2 of the European Convention of Human Rights, negligence and misfeasance in public office. Slade J held that the Deputy Master had not erred in awarding the claimants their costs relating to the inquest because the steps taken for the purposes of it were relevant to the civil claim. 


The deceased attended a police station voluntarily as a witness to a crime. She became ill and died in hospital eight days after her attendance. The claimants were the deceaseds two daughters and sister. They instructed solicitors to represent them at the inquest. Pre-inquest review hearings (PIRs) were held in June 2015 and September 2016. A seven-day inquest took place on 10 October 2016, with a jury. The jurys narrative conclusion stated that the deceaseds death had resulted from methadone and alcohol intoxication coupled with inadequate police policies, procedures and training.

Civil proceedings were contemplated. In March 2017, prior to formally bringing proceedings, the parties settled the claim for £18,798.

The first instance costs decision

At the detailed assessment, the claimants presented a bill of costs, claiming £122,000. The costs included those related to attending the two PIRs and the inquest itself, and around £36,000 for documents work in preparation for the civil claim.

At first instance, the Commissioner accepted that the costs of attending the inquest were recoverable but challenged the amount claimed as well as the claim for costs of the PIRs on the basis that they were disproportionate. The costs lawyer submitted that attendance at the PIRs was not for the purpose of gathering evidence for the civil claim, so the costs were not recoverable.

However, the Deputy Master held that:

  • The PIRs were instrumental in a number of different ways in getting [the Claimants] own pathology evidence heard at the inquest, in compelling certain police witnesses to attend[13];
  • The inquest went a lot further than evidence gatheringand determined the issues to such an extent that settlement was capable of being reached without the civil proceedings having really needing to be progressed[15].

For these reasons, the Deputy Master held that it was artificialto say that the work and preparation undertaken for the inquest was not part of the civil claim. The inquest costs were, therefore, recoverable, and an assessment of the bill of costs was undertaken.

The appeal

The Commissioner appealed on two grounds. In essence:

  • First, the Deputy Master was wrong in law to conclude that the awarded costs of £88,356.22 were proportionate. In particular, he failed to apply CPR 44.3 correctly by treating the costs of the inquest as though it represented the civil trial and failed, in any event, to reduce the total costs awarded even if they were necessarily incurred;
  • Secondly, the Deputy Master wrongly accepted the claimants’ submissions that the general costs of the inquestwere recoverable as costs of the civil action. It was an error to treat the inquest as though it was a trial of the civil claim and the inquest costs were not costs of and incidental tothe claim.

One of the Commissioners primary submissions was that she should only have to pay the claimantscosts of the attendance at the inquest which were for evidence gathering for the civil claim and which were reasonable and proportionate[28]. This category of costs did not include the attendance at the PIRs, the preparation for the inquest, the time spent on documents and conferences with counsel. Counsel for the Commissioner placed great emphasis on proportionality and contrasted the modest settlement sum of just over £18,000 to the costs award of over £80,000.

On the basis of Rule 13 of the Coroners (Inquest) Rules 2013, it was submitted that because interested persons could obtain disclosure of documents held by the Coroner and the recording of any publicly-held inquest, this provided a more cost-effective way of obtaining evidence than attending the inquest and PIRs [27]. It appears to have been suggested that this was a reason for concluding that the inquest costs claimed were disproportionate.

Slade J agreed with the Commissioner that the functions of an inquest and of a civil claim are different[40]. An inquest seeks out and records as many of the facts concerning the death as the public interest requires and it is not the coroners or jurys function to (appear to) determine any question of criminal or civil liability. An inquest is inquisitorial, whereas a civil claim is adversarial. These observations are uncontroversial and coroners often repeat them to interested persons at the start of inquests. 

The judge did not, however, accept the Defendants submission that the Deputy Master had erred in awarding the costs relating to the inquest. She relied principally on two cases:

  • In Re Gibsons Settlement Trusts [1981] Ch 179, it was held that three strands of reasoning applied in deciding whether costs incurred before the relevant proceedings were recoverable in those proceedings, namely whether those prior costs were of use and service in the action relevan[t] to an issue, and attributab[le] to the defendantsconduct(p186);
  • In Roach v Home Office [2009] EWHC 312 (QB); [2010] 1 QB 256, it was held that the costs of attendance at an inquest are not incapable of being recoverable as costs incidental to subsequent civil proceedings and that the Gibson principles should be applied in this regard. The factor of relevancewas highly important.

On the basis of these cases (which were applicable notwithstanding the subsequent Jackson reforms), Slade J essentially set down a three-stage approach for costs judges in considering inquest costs in the context of civil proceedings:

1. Relevance: identify the issues raised in the civil claim and the relevance of matters in the inquest in order to determine ‘whether any of those costs can in principle be claimed in the civil proceedings’ [46];

2. Proportionality: if the threshold of relevance is passed, decide whether the costs claimed in respect of the inquest are proportionate to the matters in issue in the civil proceedings;

3. The amount: disproportionate costs may be disallowed or reduced even if they are reasonably and necessarily incurred.

The judge emphasised that a case-by-case approach should be adopted: each application for costs in a civil claim and related to an inquest must be determined on its own facts[47].

As to the Commissioners reliance on the fact that the claim in Fullick settled at the pre-action stage, this did not necessarily point to the non-recoverability of costs relating to an inquest that contained issues relevant to a contemplated civil claim [48]. It is, of course, open to any potential defendant to admit liability prior to an inquest in order to avoid or minimise any potential liability for such costs (see Roach, [48]). 

The judge considered that the case was not just about money but was important in holding the police to account, in some measure, for the deceaseds death. The settlement gave rise to an agreement to revise policies, protocols and training. Thus, the issues were of a wider public interest than that of the Claimants [66]. Moreover, it was right for the Deputy Master to take into account the fact that once the inquest conclusion had been delivered, the civil claim could be resolved shortly afterwards. That subsequent civil proceedings are speedily compromised as a result of an inquest is not a factor against allowing the costs of the latter [67].

The following key quote from Slade Js judgment once again emphasises the important principles of relevance and proportionality. At [69] (original emphasis):

“The costs incurred by the Claimants in connection with the Inquest must be relevant to issues in the civil claim to be recoverable as costs in that claim. That requires identification of outstanding issues which are necessary to the civil claim in respect of which the Claimantscase would be advanced by participation in the Inquest. The assessment also required the identification of what it was in that participation which would assist with the civil claim. The value of that assistance would then be weighed against the cost of pursuing that particular point in the Inquest.”

Therefore, the judge held that the costs of the inquest, including attending the two PIRs, were proportionately and reasonably incurred.

Only the appeal in respect of items 68 and 69, namely Grade A and Grade D fee earner time in respect of civil claim documents work, was held to be well founded. Consequently, the total costs needed to be re-assessed. Otherwise, the Commissioners appeal was dismissed.

Points for practice

  • It remains likely that a large proportion of inquest costs will be awarded in subsequent civil proceedings.
  • In order to satisfy Slade Js three-stage approach, a prospective claimant (or, rather, their lawyers) should, so far as possible, ensure that the work done for an inquest is relevant to any contemplated civil proceedings.
  • In particular, it will be necessary to consider at the outset whether the likely total costs of participating in the inquest will be proportionate to its utility to the civil claim. This will be a difficult assessment to make but it must be done.
  • In this regard, it would be helpful at an early stage to have a good grasp of the likely issues that will arise and the extent to which the defendants conduct is attributable to the deceaseds death.
  • Prospective defendants should, where appropriate, consider making early admissions of liability so as to minimise or avoid potential liability for claimantsinquest costs.
  • Further, at the detailed assessment, defendants should be prepared to make robust arguments in relation to proportionality, even where the inquest costs are said to be necessarily and reasonably incurred.

It should be noted that the decision in Fullick (as well as those in Gibson and Roach) applies not just to the costs of inquests but also to the costs of other pre-action proceedings (or steps) which may be related to an eventual civil claim. The factors of relevance and proportionality will, again, be key in determining recoverability. See, for example, Powell v Chief Constable of West Midlands Police [2018] EWHC B12 (Costs)a claimant can, in circumstances that fulfil the three strands in Gibson, recover the costs of attending Crown Court proceedings. However, it was held that, generally, the costs of a complaint to the Independent Police Complaints Commission, now the Independent Office for Police Conduct are unlikely to fall within the Gibson strands and are unlikely to be either reasonable or necessary. The court in Powell also allowed the Claimant to recover some of the costs relating to an inquest.

For further background to the case, see the decision in Fullick v HM Coroner Inner North London [2015] EWHC 3522 (Admin); [2015] Inquest Law Reports 321 and the successful challenge to the coroner’s decision not to sit with a jury.

Anthony Searle practises in clinical negligence, inquests, Court of Protection and police law.