Roach v Home Office
| Jurisdiction | England & Wales |
| Judge | Mr Justice Davis |
| Judgment Date | 25 February 2009 |
| Neutral Citation | [2009] EWHC 312 (QB) |
| Docket Number | Case No: QB/2008/APP/0401 PTH/0801034 |
| Court | Queen's Bench Division |
| Date | 25 February 2009 |
[2009] EWHC 312 (QB)
The Honourable MR Justice Davis
Sitting with Assessors (Master Wright and MR Robert Carter)
Case No: QB/2008/APP/0401
QB/2008/PTA/0173
PTH/0801034
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE SUPREME COURT
COSTS OFFICE
Mr Andrew Post (instructed by Hodge Jones & Allen) for the Claimants (Roach)
Mr Martin Westgate (instructed by Bhatt Murphy Solicitors) for the Claimant ( Matthews)
Mr Jeremy Morgan QC and Mr Benjamin Williams (instructed by The Treasury Solicitor) for the Defendant (The Home Office)
Hearing dates: 3 and 4 December 2008
Mr Justice Davis:
Introduction
These are two costs appeals and one cross-appeal. Each case raises a point of principle as to whether costs of attending an inquest can be recovered by way of costs in subsequent civil proceedings. The paying party in each case (the Home Office) says that they never can be so recovered. The receiving parties say that they can be.
The background facts giving rise to these appeals and cross-appeal can be relatively shortly stated for present purposes.
Roach
Craig Roach was arrested for shoplifting on 16 January 2004. He was taken to Yeovil police station. He was a heroin addict and informed the police of this. He was examined by the force medical examiner and prescribed medication. He appeared before the Magistrates Court on the morning of 17 January 2004 and was remanded in custody. He was taken to HMP Exeter at around 1.30 p.m. His last dose of medication had been provided at the police station at around 8.00 a.m. He was prescribed different medication by a prison doctor, administered at around 4.00 p.m. His condition deteriorated and at around 5.00 p.m. he was found to have harmed himself by cutting his wrists, his cellmate having alerted prison staff. He was taken to a health care unit where his wound was treated. He was eventually moved to another cell, at around 7.30 p.m., his cellmate having complained about his behaviour. When there he rang repeatedly asking for more medication. He was told that there was no further medication due. He was then at around 0.40 a.m. placed in a single cell, with video monitoring and 30 minute watches. He continued to ring the bell but was told that there was no entitlement as there was no medical emergency. At around 5.00 a.m. on 18 January 2004 he was found to have hanged himself from his bed, using bed sheets as a ligature. He was declared dead at 5.55 a.m., all attempts at resuscitation having failed.
The inquest into his death was not held until 5 March 2007. It lasted some 14 days. The jury delivered a narrative verdict on 27 March 2007. Included in the narrative verdict were findings that Craig Roach was suffering psychologically from the effects of withdrawal at the time he was placed in the single cell and that prison staff were not specifically trained in dealing with prisoners who were detoxifying from drugs and alcohol.
The parents of Mr Roach approached a charity which was involved, among other things, with issues relating to deaths in custody. The charity recommended them to consult a firm of solicitors (Hodge Jones and Allen). Those solicitors instructed counsel to attend the inquest. Exceptional funding was obtained from the Legal Services Commission with effect from 17 January 2005, the family being required to make a contribution. Solicitors and counsel were present throughout the inquest; counsel had also attended a number of pre-inquest hearings directed by the coroner. It is common ground that the remuneration payable under legal aid would be in a significantly lesser amount than that recoverable (if allowed) for the same work if claimable as costs of and incidental to civil proceedings.
In December 2004 the Home Office had been put on notice of a proposed civil claim. An extension of the limitation period was agreed to 3 months after conclusion of the inquest. After the inquest a formal and detailed letter before claim dated 12 April 2007 was sent. That asserted, among other things, that the defendant's failure to provide adequate safeguards had caused unnecessary suffering. There was no substantive response and proceedings were issued on 22 June 2007 in the Central London County Court by Craig Roach's parents, Gerald Roach and Jean Roach: Gerald Roach being expressed to sue both on his own behalf and as personal representative of Craig Roach deceased. A Conditional Fee Agreement was made on 22 August 2007, with a success fee of 100%.
Craig Roach had no dependants. The claim form sought damages of not less than £5,000 but not more than £15,000. Damages were claimed not only under the Law Reform (Miscellaneous Provisions) Act 1934 but also under Sections 7 and 8 of the Human Rights Act 1998 (by reference to Articles 2, 3 and 8 of the Convention); and for negligence.
In due course an offer of £10,000 was made and it was accepted in September 2007. A Consent Order was made in the Central London County Court on 3 October 2007, providing for payment of the £10,000 and including an order that the defendant pay the claimants' reasonable costs, to be assessed if not agreed.
The Bill of Costs in due course submitted by the claimants' solicitors was in the sum of £67,126.85. The great proportion of that (some 90%) was attributed to the attendance of counsel and solicitors at the inquest. The defendant challenged the reasonableness of such bill. Amongst various points of objection there was objection to the claimed costs and disbursements in the form of costs of (London) counsel and solicitors attending the inquest on behalf of Mr and Mrs Roach. A proposal by the Home Office of £450 per day for counsel's attendance only, by way of watching brief, was made: this was disputed by the claimants, as receiving parties.
In the event the matter came before Master Hurst, the Senior Costs Judge. He gave his decision on 29 May 2008. It will be necessary in due course to refer to aspects of his judgment. He decided that the receiving parties should have one-half of the inquest costs, subject to reduction thereafter in respect of certain items.
Permission to appeal was granted by the Senior Costs Judge to both parties on 29 May 2008, limited to the issue of whether and to what extent the costs of and incidental to the inquest were recoverable as costs of and incidental to the civil claim.
Matthews
Anna Baker (the daughter of Frances Matthews) was remanded in custody and placed in HMP Styal on 1 November 2002. She was known to be addicted to drugs. On arrival at prison, she was assessed as posing a relatively low risk of self-harm. She was placed on the prison's relevant withdrawal detoxification programme. This was, however, terminated on 8 November 2002. She was then prescribed antidepressants but in due course these too were withdrawn. Her behaviour deteriorated from 9 November 2002.
On 7 November 2002, a cellmate had reported that Anna Baker had tried to hang herself. She was relocated to a secure cell and then to an ordinary cell. Her behaviour was unpredictable. On 25 November 2002 she requested the supports of a “listener”; also on that day she wrote to her boyfriend implying that she was feeling suicidal. She was reassessed as posing a high risk of self-harm; but notwithstanding that was placed in an ordinary cell, with bunk beds.
She was subject to hourly checks. She was also taken to the segregation unit for adjudication. She was returned to her cell. At 12.30 on 26 November 2002 she was given a letter from her boyfriend. Her cell was not checked again until 13.50: she was found hanging by a ligature made of strips of towel, attached to the upper bunk. She was pronounced dead at 14.25. It was said that she was one of 14 women to die at HMP Styal in 2002.
The claimant (Mrs Matthews) entered into a Conditional Fee Agreement with her retained solicitors, Bhatt Murphy, on 19 January 2004, with a 90% success fee. In due course exceptional funding was obtained from the Legal Services Commission on 17 March 2004 for attendance at the inquest. Counsel and a fee earner from the solicitors attended the inquest throughout: it lasted from 8 to 17 November 2004. The jury returned a narrative verdict: this among other things recorded failings on the part of the prison service, including a “total lack of awareness and staff training” in the management of persons at risk of self-harm and suicide.
On 9 December 2004 a very detailed letter of claim was sent to the defendant, asserting a claim in negligence and also asserting breaches of Articles 2 and 3 of the Convention.
Liability was in due course conceded. A protective claim form was issued in the High Court in November 2005, Mrs Matthews suing both on her own behalf and as personal representative of Anna Baker. A consent order, in Tomlin form, was lodged on 10 May 2006 and pronounced on 26 May 2006. This provided for payment of £20,000 by the defendant. In addition it was ordered that the defendant pay the claimant's costs, to be subject to a detailed assessment if not agreed.
In due course the claimant's solicitors lodged their Bill of Costs. A total of £91,952.09 (inclusive of VAT) was claimed. Of this £43,573 (+ VAT) related to the costs and disbursements involved in counsel and a fee-earner attending the inquest (the amount allowed for that under the exceptional legal aid funding had been £17,742 + VAT). As in the Roach case, the defendant (paying party) in its points of dispute held the position that no more than the cost of briefing local counsel on a noting brief at the inquest should be allowed: although this thereafter seems to have hardened into...
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