Lynch and Others v (1) Chief Constable of Warwickshire, (2) Warwickshire County Council and (3) Coventry and Warwickshire NHS Trust
| Jurisdiction | England & Wales |
| Judge | Master Rowley |
| Judgment Date | 14 November 2014 |
| Court | Senior Court Costs Office |
| Date | 14 November 2014 |
| Docket Number | JR1305127 |
Senior Court Costs Office
Judge:Master Rowley, Costs Judge
JR1305127
and
Appearances:M Westgate QC for the Claimant (instructed by Deightons Pierce Glynn) for the Claimants; N Bacon QC and G Wolfe (instructed by Wansbroughs, Hill Dickinson and Weightmans) for the Defendants.
Issue: Whether the costs associated with legal representation at an inquest were recoverable as the costs of a civil claim.
Facts: Ms Lynch was killed by her mentally ill former partner. I n a civil claim brought on behalf of her estate allegations were made of failings of police and mental health services. The inquest into the death lasted 38 days at which the Claimants, her family members, were represented by leading and junior counsel. Following the jury returning a verdict that was critical of police and others, liability was admitted and the civil claim was compromised.
A bill of costs of the civil claim totalling 1.5 million was presented by the Claimants of which 750,000 related to the costs of the inquest, including pre-inquest preparation. 600,000 of this sum represented the costs for the attendance at the inquest of four lawyers: 38 days of junior counsel; 23 days of leading counsel; 31 days of a senior solicitor and 38 days of a trainee solicitor taking notes.
The Defendants accepted that attendance at an inquest may be justified for the purpose of gathering evidence for a civil claim. However they argued it had not been necessary to have such extensive representation as virtually all matters pleaded within the particulars of claim were known to the Claimants before the inquest hearing as a result of the pre-inquest disclosure of documents and from previously attending a police disciplinary hearing.
The Claimants argued that their legal team's participation in the inquest and challenge of witness evidence, had led to the jury's critical verdict which had broken the will of the Defendants to fight the claim.
The costs judge considered the extent to which the costs of representation at the inquest were recoverable.
1. This judgment concerns the costs of the legal representation of the Claimants at the inquest touching upon the death of Colette Lynch in 2005. To what extent are they recoverable in the civil claims brought against the Defendants?
2. The general answer to this question was considered by Davis J in Roach v Home OfficeELR[2010] 1 QB 256, [2009] Inquest LR 45, In principle, inquest costs are recoverable as costs of and incidental to the civil proceedings. The extent of the recoverability of those costs depends upon the specific facts of each case. In Roach, Davis J expressly declined the Defendant's request to lay down any general guidelines on when specific elements of costs may be recoverable stating that it was better to leave it to costs judges to decide each case on its own facts by reference to s51 Senior Courts Act 1981 and the subordinate statutory rules and having regard to the principles indicated in Re Gibson's Settlement TrustsELR[1981] Ch 179.
3. There have been a number of decisions at first instance by costs judges which have put these principles into practice. This decision is simply a further examination of a particular set of circumstances. The factor which takes this decision into seemingly uncharted waters is the issue of disclosure which took place prior to the inquest. The coming into force of the Coroners (Inquests) Rules 2013 on 25 July 2013 means that disclosure is now a regular part of the inquest process. That was not the case when the inquest to be considered here took place. It is not for me to lay down any form of general guidelines and the conclusions in this judgment relate to this case alone. But I appreciate that this issue may be of sufficient importance for the parties to take it further to seek authoritative guidance and that is, at least in part, why I decided to hand down a reserved judgment.
4. Colette Lynch was killed by Percy Wright, her former partner and the father of one of her children. The Defendants in these proceedings were all aware of the mental health problems of Mr Wright which were deteriorating over time. Following Colette Lynch's death, the Defendants were sued by her mother, Helen Lynch, on behalf of the estate; by her brother and by her children. The Claimants eventually settled their claims against the Defendants and obtained an order for the costs of bringing the claims.
5. The inquest with which this judgment is concerned was opened on 18 February 2005, a fortnight after Colette Lynch's death. It would be four years before the inquest hearing actually took place. Before then, criminal proceedings were brought against Percy Wright and an Independent Police Complaints Commission report was produced which led to public disciplinary proceedings against two officers of the First Defendant and which only concluded at the end of 2008. Protective court proceedings were commenced on 11 February 2008 but were stayed until after the inquest had concluded.
6. The Coroner started to move the inquest proceedings at the end of 2008. There were two further pre-inquest hearings in 2009 before the inquest hearing started on 5 October 2009. It ran until 18 December 2009 when a verdict of unlawful killing was delivered. The Coroner, with the assistance of the jury, concluded that the death was contributed to by failures on the part of three Defendants as emanations of the State.
7. In April 2010 the Claimants' solicitors asked the court to list a case management conference for the civil claim. Particulars of the Claimants' claims were drafted and served before a joint settlement meeting took place in May 2011. That meeting was unsuccessful but the parties made various offers during the year and settlement was eventually agreed at a mediation hearing on 31 May 2012. An approval hearing for the infant Claimants took place on 20 July 2012.
8. The Claimants were represented at the inquest by a team comprising Karen Monaghan QC; Rajeev Thacker of counsel; Sarah Ricca, a partner at the Claimant's solicitors; and a trainee at the firm. Ms Ricca dealt with this long running case at three firms Hickman Rose; Deighton Guadella and Deighton Pierce Glynn. For simplicity I will refer to the Claimants' solicitors as Deightons throughout.
9. The First Claimant, as the representative of Colette Lynch's estate, instructed Deightons privately in this case. The Second to Fifth Claimants instructed Deightons via public funding. For the inquest, a grant of Exceptional Funding was made.
10. Ms Monaghan QC appeared on 23 days at the inquest. Mr Thacker appeared on 38 days. Ms Ricca attended on 31 days and the trainee solicitor attended on 38 days to take a note. The extent of the attendances were determined by the team with at least one eye on what would be paid for by the Legal Aid Authority. The costs of these attendances have been claimed in the bill of costs for the civil claims. The costs of attending the inquest are in the region of 600,000. According to the Defendants, those costs are over 750,000 if pre-inquest preparation is taken into account. These figures represent between 40% and 50% of the total bill of 1.5m.
11. Leading counsel prepared a note for the detailed assessment on a number of matters. At para 23 she deals with the team as follows:
The burden of workrequired leading and junior counsel and a senior solicitor. It can be noted that the legal team acting for the Claimants in the Inquest broadly matched in size and seniority those acting for each of the Defendants. The workload, given the complexity and weight of the case and the importance of the issues at stake, was too great for junior counsel alone. Further, leading and junior counsel were chosen because of the different complementary areas of specialist knowledge (junior counsel was a specialist in actions against the police and Inquests; leading counsel was an expert in human rights law, gender equality and issues pertaining to Domestic Violence.) The same work was carried out by leading and junior counsel only where strictly necessary (reading into the case etc.) Otherwise witnesses were split as between leading and junior counsel depending on the issues that were to be explored through the particular witness and the importance of the witness the case overall.
12. The general thrust of the Defendants' position is set out under the heading Conclusions in the points of dispute. Whilst the Defendants' accept that, for the purpose of gathering evidence, attendance at the inquest may be justified, it needs to be of benefit to the civil claim (as per the Gibson test). But, the Defendants contend:
For the purposes of gathering evidence, the Claimants' solicitors have gone too far. There was absolutely no need to have leading and junior counsel, senior solicitors, and supporting Grade D fee earners (who are there presumably only to take notes) all in attendance at the same time.
13. The approach taken is said to be unnecessary and disproportionate. In order to arrive at a proportionate figure, the points of dispute propose:
that for the purposes of the civil claim there was no need for leading counsel or a senior solicitor to attend. For the purposes of the civil claim there should have been somebody in attendance not only to take notes but also with sufficient experience to identify witnesses who may have been useful within the civil claim and form an assessment of their quality and credibility. The role of those in attendance was not to chaperone the Claimants or witnesses but to gather evidence.
Accordingly the paying party submits that in respect of each day of the inquest a fee, to be assessed, should be allowed equivalent to either junior counsel or a Grade C fee earner at Court rates .
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