Cherfan v Senior Coroner for West London [2024] EWHC 3261 (Admin). 12.12.24 Judgment here

It is a well establish principle that the costs of a successful Claimant’s judicial review case, or an application under s.13 Coroners Act 1988, brought against a Coroner will not be awarded unless particular circumstances arise.

As Brooke LJ noted in R (Davies (No 2)) v HM Coroner for Birmingham [2004] EWCA Civ 207, [2004] 1 WLR 2739 at §47,  the established practice is that where an inferior court or tribunal (including a Coroner) appears in the proceedings in order to assist the court neutrally on questions of jurisdiction, procedure, specialist case law and such like; the courts will treat the coroner as a neutral party. They will not make an order for costs against the coroner (or in the coroner’s favour) whatever the outcome of the application.

However, a Coroner who resists an application actively, introducing argument, such that they make themselves an active party to the litigation will, like any other Defendant, normally be ordered to foot the applicant’s bill if the Coroner’s arguments do not prevail (in accordance with CPR r. 44.2(2)).[1]

Relying on Davies the approach of many Coroners will be to remain neutral when their decisions are challenged.  However, to do so is no guarantee of costs protection. Where it is quite obvious that things have gone wrong, then a coroner who declines to consent to the application and simply sits back adopting a neutral stance may well have a costs order made against them, as this most recent case reveals.

Sammut and ors v Next Steps Mental Health Care & Greater Manchester Mental Health NHS Foundation Trust [2024] EWHC 2265 (KB), 2 September 2024. Judgment here

Anyone who thought the issue of the engagement of Article 2 and health care might now be settled after Maguire[1] was being over-optimistic.  There seem to remain a myriad of circumstance in which it is still argued that Article 2 obligations arise.

The Claimants in this civil claim for damages under Human Rights Act 1998 (‘HRA’) sought to rely upon an allegedly poor standard of health care in a private nursing home as engaging Art 2 obligations. However, as the judge found, the private organisation running the nursing home (Next Steps) was not a public authority under s.6 HRA and so owed no duty to uphold Convention rights.  Furthermore, the matter in issue was the quality of the medical care provided which, even if delivered negligently (as was alleged), would not have engaged any operational obligation owed to the deceased.

The judge made it clear, something going wrong or functioning badly as a result of clinical negligence should not be misconstrued as being due to systemic failures.  In the field of healthcare something far more exceptional, such as a knowing denial of life saving treatment, will be required. Bad clinical negligence, even to the extent of being reckless regarding a risk to life, will not suffice.

Morris v Morris, Shmuel and White [2024] EWHC 2554 (Ch),  9 October 2024, Judgment here.

On occasions a coroner may be faced with a case where the issue of another person aiding the deceased to take their own life arises.  Whilst suicide has long been decriminalised, assisting someone to end their life remains a criminal offence carrying a maximum prison sentence of 14 years.  Clear guidelines have been issued by the DPP to prosecutors in such cases, which set out when bringing charges will and will not be considered in the public interest.[1]

Where the death is in England or Wales, or the deceased’s body is returned here from abroad, then an inquest must follow. Of course it is not for the coroner to make any determination about whether a prosecution should or should not be brought. Nevertheless, a coroner hearing such a case (and there have been almost 200 in the past 5 years) will need to bear in mind a number of issues at the inquest, including the right of a witness not to self-incriminate and whether a conclusion of unlawful killing might need to be considered.

There is little guidance as to how one might approach such a case in the coronial jurisdiction, however any coroner or lawyer involved might draw some learning from seeing how the judge in this recent civil case (involving inheritance under the will of someone who had taken their own life in Switzerland) dealt sensitively and compassionately with the position of the loving family members who had been faced with a dreadful and tragic dilemma.

HM Senior Coroner for Cornwall And the Scilly Isles [2024] EWHC 2673 (Admin). 22 October 2024.  Judgment here

Where a Coroner has conducted an inquest and, through no fault of their own, done so on the basis of an incomplete picture of the circumstances surrounding the death,  both the interests of the bereaved and the public interest will make a fresh investigation and inquest both necessary and desirable in the interests of justice.

In this recent example of a Senior Coroner seeking to overturn their own inquest after new information has come to light, the High Court efficiently heard together and granted two applications brought under s.13 Coroners Act 1988.  In each case, substandard surgical care had first been implicated in the death some years after the original inquests had concluded

HM Senior Coroner Sarah Ormond-Walshe v Sherren [2024] EWHC 2332. Judgment (here) 30 July 2024

Language matters, particularly in public life.  It is now well accepted that no coroner or inquest lawyer should ever say (or invite a jury to find) that someone has ‘committed suicide’.   That archaic term connoting criminal conduct not only carries inappropriate pejorative connotations but, since Maughan clarified the standard of proof for suicide, it is also misleading to use a term usually associated with criminal findings.

Two High Court judges have now also made it clear why using the term ‘suicide note‘ should be strenuously avoided.