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High Court finds costs of attending inquest are recoverable where liability not formally admitted

  • Legal Development 6 October 2020 6 October 2020
  • UK & Europe

  • Insurance & Reinsurance

Considering the recoverability of the costs of an inquest, the High Court concluded that although the Defendant had confirmed in open correspondence it was willing to compensate the claim on a full basis, it had not admitted liability. As such the Claimant was entitled to treat this statement as being capable of withdrawal. Liability could therefore be said to be an issue between the parties and the costs of the Claimant attending the inquest were recoverable.

High Court finds costs of attending inquest are recoverable where liability not formally admitted

Greater Manchester Fire and Rescue Service v Susan Ann Veevers [2020] EWHC 2550 (Comm)

Background

The Claimant’s son was employed by the Defendant when he was killed in the course of his employment in July 2013. The Claimant brought a claim for damages. Shortly before the inquest the Defendant advised they were "willing to compensate the estate and dependants" and "deal with the claims on a full basis". Within the same correspondence, it was stated that the Defendant was "not in a position to consider an admission of liability".

The Claimant therefore confirmed she would "continue to prepare for the inquest" as part of liability investigations, and invited the Defendant to formally admit liability when served with the letter of claim to allay concerns that the "intention to pay compensation to the estate and dependents could be withdrawn at any time". The Defendant responded it was unnecessary to prepare a letter of claim as the claims would "be met without reduction".

At first instance, Deputy District Judge Harris held that as there was no formal admission of liability by the Defendant, the Claimant was entitled to perceive there was a risk the Defendant might resile from its statement confirming compensation would be paid. Therefore, the Claimant’s costs of preparing for and attending the inquest were in principle recoverable, subject to detailed assessment.

 

Appeal

The Defendant appealed the decision, submitting that the costs of preparing for and attending the inquest were not properly recoverable as being of and incidental to the claim for damages. The Defendant further argued that it’s "clear and unequivocal position" before the inquest was that "whatever any investigations might throw up" the Claimant's claim would still be fully met without contributory negligence being raised and regardless of whether a third party became involved.

The Claimant should therefore have avoided incurring the costs of instructing lawyers to attend the inquest for the purpose of investigating liability. Therefore, the inquest costs could not be said to be "of and incidental to" the civil claim.

The Claimant submitted that the Defendant could not be said to have admitted liability when its letter clearly stated it was "not in a position to consider an admission of liability". Further, the Claimant had expressly confirmed she would continue to prepare for the inquest until an admission was received. The Defendant was given the opportunity to admit liability at that stage but it did not.

 

Judgment

His Honour Judge Pearce dismissed the appeal, concluding that the "costs of preparing for and attending the inquest are costs" of and incidental "to the instant claim".

HHJ Pearce described the "central issue" in this case as being "the recoverability of inquest costs where the prospective defendant has indicated a willingness to settle any claim but has not admitted liability".

He noted that costs judges are "entitled to look with care at anything less than an unqualified admission to see whether the prospective defendant's position is one from which it may resile or which leaves matter in issue between the parties".

In this instance, "the letters sent by [the Defendant] cannot be equated to an admission of liability– their very terms are to admit to nothing". HHJ Pearce continued that the Defendant "declined to make an admission in circumstances where, had one been made, it would have been binding, subject to the provisions of CPR 14.1A". He stated that HHJ Harris was correct to have found that "absent an admission of liability, the Claimant was entitled to treat the open statement as capable of withdrawal".

HHJ Pearce identified previous decisions where it had been held that costs of attendance at an inquest were in part or wholly recoverable.

The leading case in relation to the recoverability of costs of an inquest was identified as Ross v The Owners of the Ship 'Bowbelle'. The Defendant had attempted to draw parallels with The Bowbelle stating that in both cases no admission of liability was made. However, HHJ Pearce stated there were "two clear distinctions". In The Bowbelle, there was an admission of breach of duty, whereas in this case it could not be said that "either negligence narrowly (if that means breach of duty) or liability broadly (if that incorporates both breach of duty and causation) had been conceded".

In Stewart v Medway NHS Trust, liability had not been admitted and the facts investigated at the inquest were relevant to establishing liability in the civil claim. Similarly in King v Milton Keynes General NHS Trust liability had not been admitted and it was held that reasonable and proportionate costs of attendance at an inquest were recoverable if a material purpose of the attendance was to obtain evidence or information for a civil claim.

In Lynch v Chief Constable of Warwickshire Police, the Master considered which aspects of the inquest proceedings could be said to be incidental to the civil claim. HHJ Pearce also referred to the case of Douglas v Ministry of Justice. Liability had been admitted for negligence and human rights breaches prior to the inquest. However, it was held that costs involved in participating and securing disclosure from the Defendant and obtaining witness evidence was recoverable.

 

What can we learn?

  • Ultimately, defendants should be mindful that in the event of a fatal accident where an inquest follows, then a claimant’s costs of attending that inquest will more than likely be recoverable unless the defendant makes a binding admission of liability – or per The Bowbelle, an admission of breach of duty.
     
  • The Defendant had sought to argue that a responsible public body "may wish to make clear that it will make payment of compensation to a person at an early stage and without admission of any particular basis of a claim". However HHJ Pearce found any such clarification should not have the same weight as an admission. If the public body is ultimately going to admit liability "there is no reason not to make such an admission at early stage". Furthermore, CPR 14.1A sets out a clear procedure for making an admission, and it would be “undesirable if uncertainty were created by giving equal effect to other communications that do not satisfy that description".
     
  • Beyond the instant issue of recoverability, the Court made clear that the reasonableness and proportionality of costs claimed in respect of preparing for and attending the inquest “remains a matter for assessment by the Costs Judge in dealing with the remainder of the assessment process".

End

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