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.
Background
When Marc Cherfan died at home from the effects of an overdose of prescribed drugs his family were not persuaded that he had taken those drugs with any intent to end his life. Indeed, many factors pointed otherwise including the pathology evidence that the overdose had caused Mr Cherfan to collapse and suffer a haemorrhage as a secondary cause of his death, combined with (i) the positioning of staining consistent with blood staining close to his window that might suggest that he went towards the window to seek help from someone outside; (ii) that there was a blood stained cushion cover in the washing basket in the utility room which may suggest that he planned to do his washing (iii) a line of cannabis on a table that might suggest that he was planning some form of activity after he had consumed his prescribed medication; and (iv) a medical record from three months earlier that he had no thoughts of self-harm or suicide.
When contacted by the Coroner’s Office in January 2023 to be told an inquest would be opened the family made it plain in an email that they were in no doubt that the overdose was accidental. They also stated: “We do not see the point of an inquest at this point. Marc is gone and nothing will bring him back.”
In March 2023 the Coroner’s Office requested a ‘background statement’ from a family member to enable the Coroner to “see [Marc] as a person.” No statement was provided by the family who made no further contact with the Coroner’s Office.
The Coroner thereafter planned to hold an inquest in writing “because the family had in correspondence stated that they did not see the point of an inquest”. It seems that the family were not consulted or told anything about this plan.
In any event an inquest in writing was never held because the IT system failed at the Coroner’s Office and the automatic documents generated by the coronial system for an inquest in writing did not populate correctly. Instead, in July 2023 the planned inquest in writing was converted at the last moment to a ‘rule 23’ inquest that was held considering the documents alone in open court with only the Coroner present. A conclusion of ‘suicide’ was then returned.
Requirements for an Inquest in Writing
Section 9C of the Coroners and Justice Act 2009 allows an inquest to be held in writing if the Coroner decides that a hearing is unnecessary. However a Coroner is not to decide that a hearing is unnecessary unless:
(a) the Coroner has invited representations from each interested person known to the Coroner,
(b) no interested person has represented on reasonable grounds that a hearing should take place,
(c) it appears to the Coroner that there is no real prospect of disagreement among interested persons as to the determinations or findings that the inquest could or should make, and
(d) it appears to the Coroner that no public interest would be served by a hearing.
Inquests in writing and ‘r.23’ (or documentary) inquests are intended to be held “straightforward and uncontentious cases” with “no real prospect of disagreement” regarding the outcome such as “suicides in the community where the events are clear and no actions of a third party have given rise to concern” (see the Chief Coroner’s Guidance no 29 at §8-9). The difficulty here was that the case was not straightforward and none of the requirements under s.9C(2) had been met.
The Claim
When a letter of claim arrived in December 2023 seeking a fresh inquest the Coroner acknowledged procedural irregularity but indicated that they proposed to adopt a neutral stance to the family’s s.13 application. Unsurprisingly the Attorney General soon granted a fiat to allow the family to seek a fresh inquest.
The Court held that the original decision to hold an inquest in writing was procedurally flawed because it failed to take into consideration the family’s view that Mr Cherfan died not as a consequence of suicide but by accidental overdose. The Coroner had not invited representations from the family who were plainly interested persons and, in light of the correspondence setting out the family’s view, it could not reasonably have appeared to the Coroner that there was no real prospect of disagreement among interested persons as to the determinations or findings that the inquest could or should make.
The irregularity of proceedings was then compounded by the Coroner’s decision to hold an inquest hearing in open court, albeit on documents alone. Although the date and time of the inquest had appeared on the coronial website, none of the mandatory requirements of notification to the next of kin and interested persons set out in r.9 (1) and r.9(2) had been followed.
In the court’s view the importance of giving notice of a hearing, as reflected by the mandatory nature of rule 9, made it necessary in the interests of justice for a fresh inquest to be held. In addition it was possible that a different conclusion about Mr Cherfan’s death may be reached at a fresh investigation and inquest. A fresh inquest was therefore ordered.
Unjust not to award costs
As for costs Mrs Justice Farbey noted that the Court of Appeal in Davies had recognised a number of exceptions to the general principle that neutrality should not attract costs. Firstly where there had been a “flagrant instance of improper behaviour” on the part of the Coroner staying ‘neutral’ in the proceedings is unlikely to protect a Coroner from an adverse costs order. Happily such cases are of course extremely rare, and flagrant impropriety was not being asserted here.
However, the Court of Appeal in Davies were also of the view that a Coroner who has unreasonably declined or neglected to sign a consent order disposing of the proceedings will also be at risk of costs, [2] particularly where the applicant has had to fund the proceedings from his own resources. That was what had happened here.
In the court’s view the breach of the statute’s procedural requirements, the breach of the mandatory rules and the failure to follow the Chief Coroner’s Guidance all ought have been obvious to the Coroner. In the particular circumstances of this case the court felt it would be unjust for the financial burden to fall entirely on the applicant. The coroner was ordered to pay £20,000 towards the applicant’s costs.
Comment
The pressure of work on coroners may mean that on occasions things will go wrong and administrative lapses occur. Although the decision in Davies does afford a great deal of costs protection to coroners wrapped up in judicial reviews and s.13 challenges that protection is not absolute.
Coroners will need to make a judgment call about the stance they adopt to proceedings in the light of the entire picture. Where the Court ordering a fresh inquest is not the obvious outcome and there is a question of law for the court to determine then remaining neutral, whilst not resisting the application may well be appropriate. This might even extend to appearing at a hearing through counsel in line with the guidance of Lord Sales in R(Maguire) v HM Senior Coroner for Blackpool and Fylde [2023] UKSC 20 at §117, that in such cases:
“the onus on counsel for a coroner, whilst remaining neutral, is to act as an amicus curiae (advocate to the court) and assist to ensure that the court is given the full factual picture, including if necessary by drawing the court’s attention to matters not emphasised or omitted by a claimant, as well as alerting it to relevant law and authorities.”
But where it is abundantly clear that the Coroner has gone wrong and has not followed the law, then staying neutral is far less likely to be appropriate.
The court still retains a wide discretion as to costs and factors that point to an award against a coroner include where a successful applicant has to finance their own litigation without external funding. Where something has gone wrong early acknowledgement and agreeing to a consent order is not only the right thing to do but may well avoid incurring unnecessary legal fees on both sides.
Indeed, where the error is the Coroner’s alone it is arguable that the onus should be on the coroner themselves to make the s.13 application and not expect a family to seek out and pay lawyers themselves. Coroners making their own s.13 application is a well trodden path, and it is likely that just doing the right thing will cost far less than the £20,000 handed over to the applicant’s lawyers here.
Sebastian Naughton of Serjeants’ Inn Chambers acted for the applicant in this case
Footnotes
[1] See in particular our earlier blog “Costs against Coroners: being “neutral” means staying neutral, a partisan Coroner risks an adverse costs order” here.
[2] See for example Hopkins & Ryan v Asst Coroner for Swansea and Neath Port Talbot [2018] EWHC 1604 (Admin) in our Blog here. Where after an inquest the original histopathologist change his opinion and agreed with fresh evidence obtained by the family, yet the assistant coroner declined to consent to a fresh inquest when, in the court’s judgment it would have been appropriate to do so at the outset and so avoid the Claimant’s costs of preparing a trial bundle and instructing counsel to appear at a hearing.