Greater Manchester Fire and Rescue Service v Veevers [2020] EWHC 2550 (Comm)
Can a family’s inquest costs be recovered in a subsequent civil claim if an admission has been made prior to the inquest? If the admission has in fact been informal or equivocal, the answer may well be yes.
The background
This claim arose from the tragic death of Mrs Veevers’ son, a firefighter, who died in a fire of 2013 from hypoxia and heat exhaustion. Around two months before an inquest was due to begin in 2016, and after the family representatives had already undertaken ‘extensive investigations’, the solicitors for the fire service wrote to their counterparts for Mrs Veevers, setting out:
‘Our clients have made no assessment of the potential for liability to the estate and dependants of (the deceased) but they have instructed us to set out their position in relation to any potential claim which may be brought for the family…Our clients are not in a position to consider an admission of liability and we have not undertaken a detailed forensic analysis of the potential for liability in any civil claim on their behalf. The purpose and objective in making the comments which we make directly below is to attempt to remove any additional stress from the family during and immediately after the inquest…We write in open correspondence in order to advise that our clients are willing to compensate the estate and dependents of Stephen Hunt pursuant to the Fatal Accidents Act 1976 and Law Reform (Miscellaneous Provisions) Act 1934, for any loss which they may prove to be attributable to the incident on 13 July 2013 together with payment of their reasonable costs.’
The six-week inquest was heard with a jury who returned a conclusion of unlawful killing, the jury finding the fire was probably started deliberately.[1] Civil proceedings were subsequently issued and it was admitted that the fire service were liable for failing to ensure the deceased did not exceed the maximum time using breathing apparatus and PPE. The fire service also agreed to pay Mrs Veevers’ reasonable costs. Her total costs bill was £334,000. She sought recovery of the costs incurred by her legal representatives preparing for and attending the inquest, which amounted to £141,000, over 40% of all of her costs.
The costs assessment
On costs assessment, the position of the fire service was that the costs of preparing for and attending the inquest were not recoverable, either as a matter of principle or because they were not reasonable and proportionate, in the light of their pre-inquest correspondence. The claimant disagreed, arguing that equivocation in the pre-inquest ‘admission’ meant it could not have been relied upon, as the fire service could have resiled from it, and also noting that questions asked at the inquest allowed full particulars of negligence to be pleaded, permitted exploration of the possibility of claims against other defendants, and that the inquest was just about to begin after many months of preparation and attendance at pre-inquest reviews, and it would have been wrong for Mrs Veevers’ representatives to pull out and leave her without representation.
Deputy District Judge Harris held that, in principle, the family’s inquests costs were recoverable, noting inter alia: ‘The widow (sic) of the deceased would be placed in a most horrendous position if she were forced to attend an inquest where there had been no formal admission of liability, that there was no agreement as to the evidence, that witnesses were to be called and cross-examined, that she was to be engaged in a complex and distressing legal process without representation when the Defendants quite properly turn up at such proceedings with (a) barrister.’
The appeal
On appeal, his decision was upheld by HHJ Pearce[2]. Distilling CPR Part 14 and key cases such as The Bowbelle [1997] 2 Lloyd’s Rep 196 and Roach v Home Office [2010] QB 256, Judge Pearce summarised the following key principles (emphases added):
(a) Inquest costs may be recoverable in so far as reasonable and proportionate, so long as they can properly be said to be incidental to the civil claim;
(b) Such costs will not be recoverable if liability is no longer in issue between the parties, since the costs are simply not incidental to something in issue in the civil claim;
(c) In determining whether liability is in issue, the court must look at all the circumstances of the case, but the central issue is likely to be whether the prospective defendant has admitted liability or otherwise indicated a willingness to satisfy the claim;
(d) Liability will not be in issue if it has been admitted since such an admission is binding unless the court subsequently permits it to be withdrawn pursuant to CPR 14.1A.
(e) However, the Costs Judge is 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.
(f) In particular, if the defendant’s position is not one of unqualified admission in circumstances where such an admission could have been made, the Costs Judge may be entitled to find that the failure to make an unqualified admission justified the conclusion that the defendant might exercise its right to resile from the admission and that therefore the costs of the inquest could properly be said to be incidental to the civil claim.
(g) If the costs can be justified upon these principles, the mere fact that there are other reasons why the family of the deceased should wish to be represented at an inquest, most obviously to avoid the inequality of arms between unrepresented family members and a represented public body does not mean that the costs are not recoverable. It is enough that the attendance to secure relevant evidence in relation to matters in issues was a material purpose for the attendance.
The Judge also noted that CPR Part 14 sets out a clear procedure for making a formal admission, and ‘it would be undesirable if uncertainty were created by giving equal effect to other communications that do not satisfy that description.’ He also found that ‘whilst Judge Harris recorded a concern about the position of the respondent were she to have been left unrepresented at the inquest, I can see no basis for concluding that this influenced his judgment on the central issue’ – nor, as is surely implied, should it have.
The lesson to be drawn is clear. The court will not be generous towards Defendants who try to have their cake and eat it by seeking to make a purported admission on the eve of inquest – which could have the effect of preventing the recoverability of family costs, or perhaps even prompting family legal representatives to back out – while allowing themselves room to resile from their informal admission if the evidence plays out in a favourable way (at a hearing where potentially they, but not the family, have been represented). Absent a formal admission of liability – of the kind that can only be withdrawn within the terms of the CPR – family representatives may be entitled to treat open statements indicating claims will be satisfied as being capable of withdrawal.
“The court will not be generous towards Defendants who try to have their cake and eat it by seeking to make a purported admission on the eve of inquest while allowing themselves room to resile from their informal admission”
The Judge rejected a submission that a responsible public body may well wish to indicate they will make payment of compensation, without admission of any particular basis of a claim: ‘if the public body is ultimately going to admit liability…there is no reason not to make such an admission at an early stage….The benefit to the Appellant in not admitting liability in general terms at an early stage is that it can subsequently resile from its position without having to apply.’ If a defendant wishes to maintain that benefit, they must realise there is a potential cost.
This judgment does however make clear that a formal admission of liability prior to an inquest beginning is likely to be an impassable hurdle to the recovery of inquest costs in subsequent civil proceedings. This still means that such an admission may leave family representatives in the invidious position of having to withdraw from acting for their bereaved clients, or agreeing to do so pro bono. As the Judge rightly noted, the action of a responsible public body will be to make an admission ‘at an early stage’ – not on the eve of an inquest, after preparations have already begun.
Footnotes
[2] Although no finding has yet been reported on whether the quantum of costs sought was reasonable and proportionate.