The claimant appealed against a costs order. She had previously appealed against an order of the High Court on her application for judicial review of the inquest held by the respondent.
Held: The coroner, and others in a similar position should not generally be expected to pay the costs of an appeal against an order they made where they did not take active steps to resist the appeal. Here an order was appropriate for the appeal, but not the hearing at first instance.
Brooke LJ identified four issues as arising for consideration: ‘(1) What is the established practice of the courts when considering whether to make an order for costs against an inferior court or tribunal which takes no part in the proceedings, except, in the case of justices, to exercise their statutory right to file an affidavit with the court in response to the application? (2) What is the established practice of the courts when considering whether to make an order for costs against, or in favour of, an inferior court or tribunal which resists an application actively by way of argument in the proceedings in such a way that it makes itself an active party to the litigation? (3) Did the courts adopt an alternative established practice in those cases in which the inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction and procedure and such like but did not make itself an active party to the litigation? (4) Whatever the answers to the first three questions, are there any contemporary considerations, including the coming into force of the Civil Procedure Rules 1998, which should tend to make the courts exercise their discretion as to costs in these cases in a different way from the way in which it was regularly exercised in the past?’
and concluded as to the four points: ‘(1) The established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings.
(2) The established practice of the courts was to treat an inferior court or tribunal which resisted an application actively by way of argument in such a way that it made itself an active party to the litigation, as if it was such a party, so that in the normal course of things costs would follow the event.
(3) If, however, an inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction, procedure, specialist case law and such like, the established practice of the courts was to treat it as a neutral party, so that it would not make an order for costs in its favour or an order for costs against it whatever the outcome of the application.
(4) There are, however, a number of important considerations which might tend to make the courts exercise their discretion in a different way today in cases in category (3) above, so that a successful applicant … who has to finance his own litigation without external funding, may be fairly compensated out of a source of public funds and not be put to irrecoverable expense in asserting his rights after a coroner (or other inferior tribunal) has gone wrong in law, and there is no other very obvious candidate available to pay his costs.’
Judges:
Lord Justice Brooke Sir Martin Nourse Lord Justice Longmore
Citations:
[2004] EWCA Civ 207, Times 10-Mar-2004, [2004] 3 All ER 543, [2004] 4 Costs LR 545, [2004] 1 WLR 2739, [2004] Inquest LR 96, (2004) 80 BMLR 48
Links:
Jurisdiction:
England and Wales
Citing:
Reserved from – Regina on the Application Of Christine Davies v HM Deputy Coroner for Birmingham CA 2-Dec-2003
. .
Cited – Regina v Her Majesty’s Coroner for Inner London North ex parte Peter Francis Touche CA 21-Mar-2001
The applicant’s wife had died of a cerebral haemorrhage, the result of severe hypertension, possibly secondary to eclampsia. The coroner decided not to hold an inquest. The issue raised was whether he was required to hold an inquest because there . .
Cited – Regina v Goodall 1874
The Divisional Court could, in some cases inflict costs on justices who were guilty of some gross impropriety. . .
Cited – Rex v Coventry Rent Tribunal 1-Dec-1948
The court would not grant costs against justices or similar tribunals merely because they had made a mistake in law, but only if the tribunal had acted improperly, that is to say perversely or with some disregard of the elementary principles which . .
Cited – Regina v Meyer 1875
The court made an order for costs against a justice who ought not to have sat on a case. (Comment: ‘The granting of costs when a rule is made absolute for a certiorari is contrary to the usual practice: see Gray on Costs p 466 where it is said: ‘As . .
Cited – Regina v Willesden Justices ex parte Utley 1948
The justices had fined a defendant three times the maximum penalty for a driving offence. Counsel appeared for the justices in the Divisional Court to admit that the penalty was in excess of jurisdiction and to assist the court, by reference to case . .
Cited – Rex v Kingston-upon-Hull Rent Tribunal ex parte Black 1949
A landlord obtained an order of certiorari to quash an order of a rent tribunal which had reduced the rent of certain premises without hearing evidence on behalf of the landlord. Counsel appeared on behalf of the tribunal to oppose the making of the . .
Cited – Regina v Camborne Justices ex parte Pearce QBD 1954
The applicant had been convicted by the Justices on charges of offences under the Food and Drugs Act 1938 which had been brought under the authority of the Health Committee of the Cornwall County Council. The Clerk to the Justices was a councillor . .
Cited – Regina v Liverpool Justices ex parte Roberts QBD 1960
The defendant challenged a conviction where the magistrates had not heard from him. The magistrates were not reprsented at the appeal.
Held: The appela was successful, but the court declined to award costs against the magistrates: ‘So far as . .
Cited – Regina v Llanidloes Licensing Justices ex parte Davies 1957
Justices appeared by counsel on an appeal to resist, unsuccessfully, an application to set aside an order they had made in relation to the extension of licensing hours.
Held: Ordering them to pay the applicant’s costs: ‘If the justices appear . .
Cited – Regina v Hastings Licensing Justices ex parte Lovibond QBD 1968
The court granted an order of certiorari to quash a decision of licensing justices. The magistrates had not resisted the appeal, but commercial rivals of the licensee had persisted with their objection.
Held: ‘it is very rare that this court . .
Cited – Regina v Newcastle Under Lyme Magistrates Court Ex Parte Massey and Others QBD 7-Oct-1994
Guidance was given on orders for payment of costs by justices who found themselves respondents to judicial review proceedings. Justices who refused consent to quash a committal and failing to appear may be subject to such orders. . .
Cited – Regina v York City Justices ex parte Farmery QBD 1988
The magistrates had been asked to be represented on a case stated to explain their apparently unreasonable order.
Held: Though the application was successful against the magistrates and they had appeared, costs were not awarded against them . .
Cited – Regina v Paddington South Rent Tribunal ex parte Millard 1955
Counsel had been appointed for the tribunal to resist an appeal against the order the tribunal had made.
Held: As to costs: ‘It does not matter to the tenant (who is legally aided) whether the costs come out of one fund or another, but so that . .
Cited – S v Special Educational Needs Tribunal and the City of Westminster QBD 1996
The court ruled that under RSC Order 55 Rule 8, the tribunal could not appear in the High Court because they were not a party to a statutory appeal from one of their decisions, but added: ‘But the court has ample power to permit the tribunal to . .
Cited – Regina v West Yorkshire Coroner ex parte Smith QBD 1985
The deceased’s father sought an order prohibiting the coroner from conducting an inquest on his dead daughter. Among his grounds was that the coroner might appear to be biased because of an outstanding application for costs against the coroner . .
Cited – Regina v Hammersmith Coroner ex parte Gray CA 1986
Several police officers obtained an order directing a new inquest in a case in which the coroner was held to have misdirected the jury in relation to a possible verdict of unlawful killing. The misdirection was severe, but the issues and law were . .
Cited – Regina v Shrewsbury Coroner’s Court ex parte British Parachute Association QBD 21-Sep-1987
Coroners are forbidden by the rules to make recommendations to a jury as to their verdict. Despite the fact that the coroner was represented at the appeal, the court refused to make any order for costs against the coroner. This was not a case where . .
Cited – Holden and Co v Crown Prosecution Service (No 2); Steel Ford and Newton v Crown Prosecution Service and Another (No 2) HL 14-Jul-1993
The Court of Appeal had set aside wasted costs orders made in the Crown Court against four different firms of solicitors.
Held: The House set aside the orders but was unable to award to the firms their costs of the successful appeals. There is . .
Cited – Regina v Coroner for Southern District of Greater London, ex Parte Driscoll Admn 22-Oct-1993
The applicant, a sister of the deceased, requested a judicial review of the decision of the coroner not to allow her to be represented and to cross examine witnesses.
Held: One of the coroner’s letters had been offensive and misleading. A . .
Cited – Seifert v Pensions Ombudsman and others CA 31-Jul-1997
The setting aside of part only of an Ombudsman’s determination is not sufficient of itself to justify a full costs order against him. The Ombudsman had not been represented on the appeal. Of the fact that the order had been varied: ‘But that is not . .
Cited – Regina v Coroner for Kent Ex Parte Johnstone QBD 12-Sep-1994
A coroner may be liable for costs after a wrongful refusal of an adjournment. A mistake by a medical expert caused the need for a new inquest. A request that the coroner should pay the applicant’s costs was granted. The court identified why the . .
Cited – Regina v Lincoln Coroner, Ex Parte Hay Admn 19-Feb-1999
Coroners Society recommended to publish pre-trial guidelines and prepare a list of witnesses to be called showing in each case a brief summary of the evidence expected to be given by that witness in order to assist parties at inquests. A costs order . .
Cited – Regina v Coroner for Wiltshire ex parte Clegg QBD 1996
The court awarded costs against a coroner on an appeal even though he had only taken part by the filing of an affidavit. . .
Cited – Balabel v Air India CA 1988
When considering claims for legal professional privilege, the court should acknowledge the ‘continuity of communications’. However, where the traditional role of a solicitor had expanded, the scope of legal professional privilege should not be . .
Cited – Providence Capitol Trustees Ltd v Ayres ChD 1996
If the Pensions Ombudsman takes part in an appeal and makes himself a party to the lis, he is at risk as to the costs of the appeal. It may be appropriate to make an application before the main hearing to settle such issues. The ombudsman will only . .
Cited – University of Nottingham v Eyett and Another (No 2) ChD 3-Dec-1998
The Pensions’ Ombudsman having had a decision overturned on appeal and having entered appearance at the appeal was liable in costs only to the extent that his intervention had increased the costs. . .
Cited by:
Costs reserved to – Regina on the Application Of Christine Davies v HM Deputy Coroner for Birmingham CA 2-Dec-2003
. .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – London Borough of Camden v The Parking Adjudicator and Others Admn 18-Feb-2011
The council appealed after parking adjudicators allowed four appeals where the council had imposed a surcharge on the payment of civil parking penalties where payment was made by credit card. . .
Cited – Gourlay, Regina (on The Application of) v Parole Board Admn 24-Nov-2014
Challenge by way of judicial review to the Decision of the Parole Board following an oral hearing first not to direct the release on licence of the claimant, and secondly, not to recommend the transfer of the claimant to open conditions. The . .
First Instance main judgment – Gourlay, Regina (on The Application of) v The Parole Board CA 14-Jul-2017
Does the established practice of the High Court, to make no order for costs for or against an inferior tribunal or court which plays no active part in a judicial review of one of its decisions, extend to the Board? . .
Cited – Gourlay, Regina (on The Application of) v Parole Board SC 4-Dec-2020
The appellant life prisoner had successfully challenged a decision of the parole board, but had later been refused his costs on the basis that the Board had been acting in effect as a judicial body. . .
Cited – Gourlay, Regina (on The Application of) v Parole Board SC 4-Dec-2020
The appellant life prisoner had successfully challenged a decision of the parole board, but had later been refused his costs on the basis that the Board had been acting in effect as a judicial body. . .
Lists of cited by and citing cases may be incomplete.
Coroners, Costs
Updated: 04 May 2022; Ref: scu.194077
