Costs against Coroners: Paying for a cab rank rule

Written by: Elliot Gold
Published: 25 June 2018

R (Adath Yisrosl Burial Society and anor) v HM Senior Coroner Inner North London (Costs) EWHC 1286 (Admin)

In the closing chapter of a case that has attracted wide media comment, the Divisional Court has now considered whether costs should be awarded against the North London Coroner, whose ‘cab rank’ policy for addressing the administration of deaths in her area, challenged by religious groups who considered that it amounted to indirect discrimination, was quashed in April.

In the substantive case, discussed here, the court held the Senior Coroner’s policy to be irrational and unlawful. She had wrongly fettered her discretion to expedite deaths where there was a particular need or religious imperative to do so.

The remaining question, therefore, concerned costs. In particular, whether the court should follow the general rule in CPR 44.2(2)(a) that in civil actions, including applications for judicial review, the unsuccessful party be ordered to pay the costs of the successful party, notwithstanding that the Defendant was a judicial officer.

As the Court of Appeal has previously made clear in Davies[1], although the award of costs is discretionary, the fact that a coroner loses a case as a Defendant is an insufficient basis, in and of itself, on which to make an adverse costs order against him or her.

The fact that a coroner loses a case is an insufficient basis, in and of itself, on which to make an adverse costs order against him or her.

Emergency Hospital Treatment & Article 2 Inquests: Fernandes applied to domestic law

Written by: Bridget Dolan KC
Published: 17 June 2018

R (Parkinson) v HM Senior Coroner Kent, Dartford and Gravesham NHS Trust and Dr Hijazi (Interested Parties) [2018] EWHC 1501 (Admin)

In a tour de force judgment, that deserves plaudits for its several pages of lucid exposition of the application of Art 2 in respect of deaths associated with medical treatment, the Divisional Court have re-affirmed that the Art 2 investigative obligation will not be engaged if what is being alleged amounts to no more than medical negligence by healthcare staff.

Although Art 2 rights could be infringed if an individual’s life is knowingly put in danger by the denial of access to life-saving emergency treatment, the state’s Art 2 obligations do not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment.

That conclusion is perhaps of little surprise given the very recent and authoritative statement of the relevant principles set out by the Grand Chamber of the European Court in Fernandes v Portugal[1] (see our earlier blog). Indeed once Fernandes was decided in December 2017 the main part of the Claimant’s judicial review claim was already thoroughly holed below the water line. Mr Parkinson nevertheless sought to urge upon the Court that, if necessary, it should decline to follow decisions of the ECtHR.

Launching the final torpedo, the Divisional Court made it clear that only in exceptional circumstances would the courts in this country decline to follow the jurisprudence of the European Court of Human Rights. Fernandes was to be followed: and, on the facts, there had been no arguable breach of Art 2.

Taking the Fiat to the end of the road: s.13 applications & challenging the Attorney General

Written by: Bridget Dolan KC
Published: 7 June 2018

R (Lyttle) v (1) Attorney General (2) HM Senior Coroner for Preston [2018] EWHC, 25.5.2018

In a useful reminder of the constitutional position of the Attorney General, this Administrative Court decision has made it clear that should the Attorney General refuse to give a fiat this will be the end of the road for any Claimant hoping to make an application under s.13 of the Coroners Act 1988 for a fresh inquest.

Unlike Judicial Review proceedings, where permission to proceed with a claim is sought from the High Court, applicants hoping for an order for a fresh inquest under s.13 Coroners Act 1988 must first seek permission to proceed (a fiat) from the Attorney General. As with the High Court Judicial Review permission stage, the purpose of the fiat is to weed out unmeritorious or frivolous claims. But unlike the High Court – where refusal of permission on the papers may be followed by an oral permission hearing – the Attorney General’s decision, which is always made on the papers, will be final.

The Attorney General is answerable to Parliament, not to the Administrative Court in this respect, hence challenging the fiat decision in the High Court is not only futile but, as in the present case, the applicant also risks having costs awarded against them when the Attorney General inevitably succeeds.

Protecting Vulnerable Witnesses in Coroners Courts

Written by: Bridget Dolan KC, Amy Street
Published: 5 June 2018

R (Maguire) v Assistant Coroner West Yorkshire [2018] EWCA Civ 6

In a sequel to our earlier blog piece the Court of Appeal have delivered their judgment upholding the decision of Mr Justice Holroyde[1] who had found that the Assistant Coroner had been correct to decline to hear oral evidence from nine children who had contact with the killer of their teacher on the morning of her death, and who had heard his threats to kill and/or knew he was carrying a knife, but had not revealed this to any adult before the death.

The Lord Chief Justice noted that under the Coroners Act 1988 and its predecessors, a coroner was required to examine such witnesses as appeared “expedient”[2] and whilst the formulation is different in the 2009 Act[3] which simply empowers a coroner by notice to require a person to attend to give evidence or to produce evidence, nevertheless, the change has not affected the basis upon which a coroner’s decision to decline to call or seek evidence may be challenged, which is on the usual Judicial Review grounds[4].

In dismissing the appeal on all grounds the Court of Appeal endorsed the Coroner’s approach of balancing the value of the evidence against the potential harm to the pupils of giving evidence. In this case, given the absence of any relevant policies or rules regarding reporting the presence of knives in school, it was very difficult to see how the proposed questioning of the nine pupils would have any value at all. Exploration of the individual child’s thinking in connection with the decisions he or she made that morning when confronted with knowledge of what the killer was saying and doing was not within the scope of the inquest. The decision not to call these witnesses was therefore plainly rational.

Coronial queue jumping, religious need, fixed policies and fairness

Written by: Katie Gollop KC
Published: 16 May 2018

R (Adath Yisrosl Burial Society and anor) v HM Senior Coroner Inner North London and The Chief Coroner of England and Wales (Interested Person) EWHC 969 (Admin), 27.4.2018

This is an unhappy case all round. The silver lining is that the Divisional Court went out of its way to facilitate some public education about that most fundamental and cherished of rights, the principle of equality. Anyone wanting a crash course in: absolute and qualified rights, justification, indirect discrimination and proportionality and the PSED (the public sector equality duty) should head straight to paragraphs 93 to 143 and make an entry on their CPD form. But the take away point is this:

People are different. Treating them equally does not mean treating them the same.

The specific issue was whether the Coroner could and should fast track the administration of deaths of Jewish people or whether religion should be left out of account altogether, so that each death, and family, should await their turn in the coronial queue.

The Divisional Court decided that specific point (in appropriate cases they can and should) and then explained what equality means. We suffer discrimination not only when we are treated differently to someone in an analogous situation but also when, being different, we are not treated differently. We are not all the same, one size does not fit all and if we are to be treated equally, a balance must always be struck.