Briley & Ors v Leicester Partnership NHS Trust & Ors – Recoverability of a pre-Inquest review
In the matter of Briley & Ors v Leicester Partnership NHS Trust & Ors [2023] EWHC 1470 (SCCO), the recoverability of attending a pre-inquest review was considered.
Background
This matter related to the death of Amanda Briley, who passed away on 28 December 2016. Amanda was suffering from self-harming behaviour and mental health difficulties around the age of 12 and was referred to Child and Adolescent Mental Health Services, where she was under the care of the First Defendant since 2013.
Following multiple attempts of suicide and self-harm, Amanda ultimately committed suicide on 26 December 2016. Following her death, a serious investigation was carried out. The investigation raised various concerns and identified various failings of the Defendant and identified that the Amanda’s extended stay on an unsuitable ward was the root cause of the incident.
The pre-Inquest review & settlement
The Claimants brought an action for negligence against the Defendants. The Claimants wrote to the Coroner requesting all disclosure and a pre-Inquest hearing was listed on 17 May 2017. A pre-Inquest hearing took place on 11 December 2017 where Directions were made for disclosure of witness statements and medical records.
Extensive documents were disclosed and submissions were made by the parties, resulting in a further pre-Inquest review hearing on 30 May 2018. Following this hearing, a Part 36 offer was made by all three Defendants in the sum of £32,500 plus costs. The offer was not accompanied by an admission of liability, on which the Claimants placed a significant degree of importance.
On 26 October 2018, a further Part 36 offer was made by the Defendants in the sum of £65,000 plus costs however, again the Defendants did not offer a full admission of liability, therefore resulting in further work being necessary to proceed with the claim. On 3 November 2018, the First and Second Defendants admitted liability in respect of all causes of action. Following the admittance of liability, the Defendants’ Part 36 offer was accepted on 16 November 2018, 3 days before the inquest was due to start on 19 November 2018.
Position of the Defendant
The Claimants had incurred costs of £14,736.67 in costs of attending the pre-Inquest review, broken down as £7,587.50 in Counsel’s fees, £6,349 in Solicitors’ Costs and £834.17 in travelling expenses. The Defendants considered the costs claimed to have spiralled out of all context with the value of the claim, before the Defendants had the opportunity to address the civil claim and considered that the Claimants had incurred an eye-watering legal spend without regard to consideration of proportionality and suggested that had the inquest taken place, costs would have been higher still.
The Defendants’ raised various arguments in relation to proportionality, citing the point made in Jefferson v National Fright Carriers regarding the requirement for parties to make an assessment of the likely value of the claim from the outset in order for the claim to be run in a proportionate manner. The Defendants raised Roach v The Home Office stating that only costs of and incidental to
the civil claim are recoverable and disputed all items associated with matters of procedure including the attendance at the pre-Inquest hearings, assisting the Coroner, listening to witness statements being read aloud and the verdict. The Defendants also challenged all costs associated with client care and travel expenses, referencing the points made in Lynch & ors v Chief Constable of Warwickshire Police & ors.
The Defendants stated that they resist all costs incurred and state that neither a Solicitor/ fee earner nor a Barrister should have attended the pre-Inquest hearing.
The position of the Judge
The Judge did not accept the arguments put forward by the Defendant. Costs Judge James considered that the case law received to be facts specific and none of the cases referred to have the same factual matrix as this case.
Costs Judge James considered the decision of Fullick where it was found that costs of attending an Inquest are potentially recoverable in a claim for damages but the Court has to be careful to ensure that costs allowed are reasonably necessary and proportionate in the pursuit of the civil claim.
Costs Judge James considered the pre-Inquest reviews to be of significant use and benefit to the civil claim because, but for their representation at those pre-Inquest reviews, the weighty presence of the Defendants’ lawyers may have prevailed upon the Coroner and key documents and facts may have never came to the light. The judge found the costs associated with the pre-Inquest review to be recoverable on the facts of this case.
The judge also made a remark in relation to the Defendants’ reference to ‘eye-watering’ costs. Costs Judge James considered this to be misplaced, stating that Amanda died after months of inadequate care, culminating in her taking steps that ended her life at the young age of 20. In the context of the Claimants’ wish to get to the bottom of why such a vulnerable young person who had been making multiple cries for help over the proceeding months and years and who, based on the background facts, to have had a reasonably clear pattern of harming herself at the first opportunity should her supervision levels fall, had been put on such low levels of supervision hours before she died, the judge did not consider the costs to be ‘eye-watering’ at all.
Analysis
This case demonstrates that the recoverability of inquest costs will depend entirely on the circumstances relating to that particular claim. Attendance will need to be reasonable and proportionate and must have significant use and benefit to the civil claim. Consideration must be given to whether all or some of the steps are relevant to the civil claim and if any steps are agreed or non-contentious, the receiving party will have an uphill battle in convincing the Court that the sums are reasonable and proportionate.
It should also be noted that the financial value of the claim is not the only factor taken into account when considering proportionality. As the case here, the pursuit of liability and commitment for the Defendants to learn from the death of Amanda were also key in considering the proportionality of the costs incurred.
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