Friday, 8 February 2013

Claiming the Costs of a Future Inquest

Rachel Galloway, also from Kings Chambers,  and I have recently settled a fatal clinical negligence case where, unusually,  we claimed and recovered the costs of representation at a future Coroner's Inquest.
Andrea Green, aged 39, was a patient at Barnsley Hospital. She had been admitted for a routine discectomy operation. The surgeon carried out the procedure at the wrong level of her spine and then cut the iliac artery resulting in internal bleeding.  She died within 24 hours of the surgery.

We alleged that due to systemic failings the Trust had failed to comply with article 2 of the European Convention on Human Rights. A claim for damages was brought under the Human Rights Act for non-pecuniary losses, there being no family member entitled to a bereavement award under the Fatal Accidents Act. The deceased did have an elderly father and there was a dependency of small monetary value. By s 7 of the Human Rights Act there is a one year limitation period and the defendant would not agree to extend time for issue and service. So, we found ourselves commencing proceedings before the full Inquest had taken place.
The Defendant made admissions of negligence in its defence, including an admission that it had been negligent to have failed to prevent the particular surgeon from performing spinal surgery before the date of the fatal procedure, and made early offers to settle which were ultimately accepted.
What makes the case of wider interest is that as well as claiming damages for non-pecuniary loss suffered by the bereaved relatives, we also claimed for pecuniary damages, being the costs of legal representation at the future inquest. As part of the settlement the Defendant agreed to pay not only damages and costs to date, but also a substantial sum in respect of representation at the future Inquest, albeit not by way of  damages and without any admission of breach of article 2.
Whilst it is established law that the costs of an inquest already incurred may be recovered as costs incidental to civil proceedings (see the High Court decision of Roach v Home Office [2009]EWHC 312 and the earlier Supreme Costs Office decision in King v Milton Keynes General NHS Trust [2004] Inquest LR 72) there is no established precedent dealing with the situation where the costs of the inquest are to be incurred at a future date.  Indeed, due to the strictures of Part 36 of the Civil Procedure Rules, the recovery of such future costs is a real problem for families who are far too often faced with attending inquest proceedings without representation, resulting in a clear inequality of arms particularly in the medical context.  In this instance, for example, two doctors involved in the deceased’s care and the Trust will each benefit from separate representation at the inquest. 

Under the Human Rights Act the courts are given a wide discretion to award damages where it is necessary to afford just satisfaction. It is established following R(Greenfield)-v-Secretary of State for the Home Department [2005] UKHL 14 that the courts should look to the jurisprudence from Europe when determining whether to award damages under the HRA, and the quantum of those damages.

It is clear from Europe that pecuniary as well as non-pecuniary losses can be made the subject of damages and sometimes damages for pecuniary loss may be substantial - see for example Oneryildiz-v-Turkey (App 48939/99) where various heads of pecuniary loss were compensated.
In Bubbins-v-UK (App no. 50196/99) , the applicants claimed damages for the cost of an Inquest. Their application was refused on the grounds that the Court had found a breach of Article 13 (failure by the state to provide a remedy) rather than a breach of article 2. Therefore the breach had not caused the need to incur Inquest costs. However the ECtHR did not say that damages could not be awarded for Inquest costs where they followed from a breach of article 2.

There is no automatic right to public funding for Inquests and public funding for representation at Inquests involving healthcare provision, even when article 2 might be engaged, is given only in very exceptional cases. An additional barrier to public funding, in some cases, will be that the family has recovered some money from the civil proceedings. The one year limitation period under the HRA may force families to make and then resolve claims prior to Inquests taking place. Those Inquests can be complex and difficult for families fully to participate in without proper representation.

If families such as my clients have no funds to pay for proper representation at a future Inquest, then they might be able to mount a challenge relying on the investigatory limb of article 2 - see Jordan-v-UK (App no.   24746/94) and R(Khan)-v-Sec of State for Health [2003] EWCA 1129. But the better solution, surely, is for the state, through the defendant public authority to volunteer to pay for representation at the future Inquest. To its credit that is what the Trust agreed to do in our case. By so doing the public authorities have ensured that the family can fully participate in the important and lengthy Inquest which is due to be held later in 2013.

My instructing solicitor was Andrew Harrison of Raleys solicitors. The family have given permission for me to write about their case. The inquest will be heard at the Sheffield Coroners’ Court in November 2013 and is listed for 3 weeks. 

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