Shipsey v Senior Coroner Worcestershire [2025] EWHC 605 (Admin) 14 March 2025 judgment here
“Hard cases make bad law”. When that is one of the first things a Court of Appeal judge says as the case is opened before her you know it is going to be an interesting day in court. But on reflection, perhaps the better aphorism here would be that “Hard cases make you think really very hard about the law in ways you have not needed to before”. The outcome of the staggering procedural tangle generated by the manner in which this claim was brought has been an innovative legal resolution that has clarified the extent of the High Court’s s.13 powers. What blog readers will now discover is that the remedies available to the court under s.13 Coroners Act 1988 extend further than you (and many others) previously may have thought.
A JR claim metamorphoses
This claim was first conceived in 2018 as a relatively simple Judicial Review (‘JR’): a challenge by the Claimants to the Coroner’s conclusion of suicide in respect of their daughter, Beth’s, death from an overdose. JR permission was refused. The fresh expert evidence that had by then been obtained being deemed by the judge to be unpersuasive even if it was admissible in a JR claim.
However, by 2023 further factual and expert evidence had been collated and the claim had metamorphosed into a challenge brought under s.13 Coroners Act 1988. A fiat of the Attorney General was obtained to challenge the finding of Beth having had suicidal intent. The claim form was duly issued in April 2024 and served on the Senior Coroner within the required six weeks. Two NHS Trusts who had treated Beth, and were IPs at the first inquest, were also served as Interested Parties. The “narrow scope” of the new inquest sought was to be “limited to whether to record suicide, misadventure, or open conclusion”.
Section 13 following a failed JR ?
Thus far there was nothing particularly unusual beyond the s.13 process being used to have a ‘second bite at the cherry’ after a JR addressing a similar issue had failed. This may not be a commonplace occurrence, but it is a completely legitimate one where the circumstances allow.
What made this particular metamorphosis extraordinary was that the Claimant’s fully formed s.13 challenge did not actually emerge from its cocoon until less than a month before the Divisional Court hearing set down for 5 March 2025. In an application notice issued on 11 February 2025 the Claimants sought to rely upon even more fresh evidence and the claim had pupated into a wholly different creature.
The Claimants were now seeking a fresh inquest to pursue an unlawful killing conclusion based on a third report from their expert psychiatrist, dated 24 January 2025, which now postulated Beth’s alleged lack of mental capacity as the foundation for a finding of gross negligence manslaughter on the part of the vendor of the pills that had killed her.[1]
The procedural quagmire
This latest imago now threw up a panoply of procedural problems, not the least of which was that the Attorney General’s fiat had been given and the claim form issued on a completely different basis from that now being pursued. In addition PD49E, paragraph 20.3(3) provides that a Part 8 claim form bringing an application under s.13 must be “served upon all persons directly affected by the application within six weeks of the grant of the Attorney General’s fiat”. The alleged perpetrator of the unlawful killing was wholly unaware of the s.13 proceedings and had not been served with the claim form or any of the documents.
The NHS Trusts (who were neutral on the overall claim) tried to assist by offering the Claimants a route to avoid the procedural difficulties posed by their recent change of position. It was suggested by the Interested Parties that if the s.13 application were dealt with on the basis of its 2024 presentation, this would still allow a coroner holding any fresh investigation and inquest to consider the new matters the Claimants were raising in their 11 February 2025 application.
The Claimants chose not to accept that solution, but instead issued a further application notice on 25 February 2025, in which they made several more procedural applications. The net result was that, with only a one day court listing, the Claimants now sought:
(1) permission to rely on further evidence under CPR 8.6(1);
(2) permission to amend their claim form under CPR 17.1(2)(b);
(3) an order declaring that the alleged perpetrator of the gross negligence manslaughter was not “directly affected” by the amended application for the purposes of PD49E, paragraph 20.3(3);
(4) alternatively, permission to dispense with the requirement to serve the amended Part 8 claim form on the alleged perpetrator of the manslaughter on the grounds of exceptional circumstances,[2]pursuant to CPR 6.16;
(5) alternatively, permission to serve the amended Part 8 claim out of the jurisdiction under CPR 6.36, with time extended to do so under CPR 17.3(1)(b); and
(6) an order providing the Claimants with liberty to apply to the court for further directions as needed.
The Court clearly did not think that any of these applications were very attractive propositions. Even if issues (1) and (2) were surmounted. Issue (3) of the proper interpretation of the phrase “directly affected” in PD49E would still have to be confronted. This was a novel legal question.[3] The court indicated that given the remedy now sought was an inquest where commission of a homicide offence would be a central issue the court was not, on a provisional glance, persuaded that the alleged perpetrator was not ‘directly affected’ by the reconstituted s.13 application.
The alternative application under (4) relied on the court’s power under CPR 6.16(1) to dispense with service of a claim form entirely. But that power applied only in “exceptional circumstances” and was a highly problematic application in light of Court of Appeal authority indicating that the discretion under CPR 6.16(1) was confined to cases where there had been unsuccessful attempts at service. If service had to be effected application (5), seeking permission to serve the amended Part 8 claim out of the jurisdiction was, said the court, “inherently unattractive” being likely to lead to two more years of delay before any fresh inquest could be heard if one were granted.
Accordingly, the Claimants, were invited by Lady Justice Macur to put their numerous applications with what she called their “interesting melange of orders” aside, and start by advancing their application adopting the approach that had been suggested to them by the counsel for the NHS Trusts, on the basis of their 2024 s.13 application alone.
Procedural hurdles deftly sidestepped, the court now needed to consider the factual basis for the original s.13 claim.
Grounds for the initial s.13 application
Beth had intentionally taken an overdose of Dinitrophenol (‘DNP’) pills that had caused her death. At her inquest the Coroner had found that her actions had been with the intent to die, and so his narrative conclusion recorded (in both box 3 and box 4 of the Record of Inquest) included the word ‘suicide’ and made reference to Beth’s ‘fatal intent’.
Beth’s parents did not agree that her actions had been suicidal, they very strongly felt that her overdose had been an impulsive act mediated by the Emotionally Unstable Personality Disorder from which Beth suffered. Although there was no dispute that she had intentionally consumed some DNP, they did not accept that Beth had intended her death to be the outcome of her impulsive act. In particular, the Claimants believed that Beth’s declaration to others that she had taken 30 DNP pills was just an exaggeration. The Coroner had accepted that there was some doubt over the exact number of pills consumed as the blood levels of the toxic substance was far lower than would be expected after taking 30 DNP tablets. But these were not proprietary drugs but fake copies bought on the internet from abroad, and Beth had vomited after taking the drugs. The Coroner had still found that Beth had taken a ‘significant number’ of tablets and she was aware of their toxicity, as grounds for his finding of her fatal intent in conjunction with two statements of intent made by Beth at the material time: one recorded by the ambulance crew and another reported to the clerking in doctor.
The 6 day inquest in 2018 had culminated in a factual summation of the Coroner’s findings and conclusions that took almost 2½ hours to present and the transcript of the Coroner’s ruling ran to over 40 pages. This, said Mrs Justice Hill, was “a very thorough approach”. There had been no insufficiency of inquiry by the Coroner: far from it, indeed the view of the judge was that this had been “a comprehensive and sensitive investigation.” There had been no insufficiency of inquiry by the Coroner.
Nevertheless, between 2018 and 2023 a wealth of new evidence had been obtained.
In particular: two toxicology reports now suggested the likely number of tablets taken by Beth was much less than 30 pills; psychiatric evidence supported the overdose being an impulsive act; and additional social media posts from the day of her death also cast doubt on Beth’s intent. When read cumulatively the new evidence “provided a much fuller evidential platform for consideration of the intention issue”.
The s.13 application was therefore granted on the basis on which it was originally advanced, based solely on the material properly served in 2024. Accordingly, all the complex eleventh hour procedural applications that were about to cause quite a significant amount of trouble simply fell away.
Novel remedy
Where then are there any lessons of law related to s.13 powers in this case you might ask?
Well, once the Claimant’s first hurdle was surmounted what exercised the court was the issue of the appropriate relief to be given.
Two novel issues were now raised by the NHS Trusts, who although neutral on the application, did not welcome their staff being called to attend any fresh inquest:
(i) Whether it is permissible to amend the Record of Inquest under s.13 Coroners Act 1988 by quashing only parts of it
(ii) Whether it was necessary to order a fresh coronial investigation
As Mrs Justice Hill remarks in the judgment (explaining why ordering costs againt the NHS Trust would be inappropriate) although it was “the NHS Trusts, who had played a slightly more active part in the proceedings than the Coroner” it was “the comprehensive submissions from the NHS Trusts, in particular, that enabled the Claimants to find a way through the procedural issues created by their 2025 applications and to achieve the novel remedy that has now been granted.” [4]
Section 13(2) relief
Where the criteria in section 13(1)(b) Coroners Act 1988 are satisfied, one must turn to sub-section 13(2) to see the relief that might be given. This sub-section provides that the High Court may:
(a) order an investigation under Part 1 of the Coroners and Justice Act 2009 to be held into the death either:
(i) by the coroner concerned or (ii) another coroner in the same coroner area;
(b) order the coroner concerned to pay such costs of and incidental to the application as to the court may appear just; and
(c) where an inquest has been held, quash any inquisition on, or determination or finding made at that inquest.
The statutory language makes no mention of the addition of words to a Record of Inquest and so clearly the court’s powers under section 13(2)(c) (as opposed to on a claim for Judicial Review) do not extend to amending a Record of Inquest by quashing specific wording and substituting the court’s own wording. However on the unusual facts of this case the court agreed with the NHS Trusts’ submission that it hadthe power under section 13(2)(c) to amend a Record of Inquest by merely quashing, removing or “red-lining” offending words.
This was because a statutory amendment to s.13 made in 2013[5] had added the words in bold above to s.13(2)(c) with the effect of giving the court greater flexibility. If the court did not consider that quashing the entire Record of Inquest was appropriate, quashing the wording of a determination or finding was now permissible.
While the editors of Jervis on Coroners have stated in successive editions that it is not permissible on a section 13 application to “to remove offending words” from a Record of Inquest,[6] this has generally been said alongside the correct proposition that the court cannot substitute its own conclusion. The post-2013 authorities that had stated that the court does not on a s.13 application “have the power to amend the finding or to substitute its own finding for that of the Coroner”, when understood in their full context were cases where what was being sought on the facts went beyond mere deletion of words and amounted to a substitution of a different inquest conclusion.
Here the court considered that it could quash just some the parts of the Coroner’s narrative conclusion (specifically those words stating that Beth died “as the result of suicide”; and that when she ingested the tablets she “did so intending to take her own life”) as by in doing so it would leave an intact and comprehensible narrative that still addressed and answered the statutory questions. As such quashing the disputed words did not require the holding of a fresh inquest.
Lady Justice Macur observed that had the Divisional Court needed to go down the road of the procedural difficulties of the 2025 claim they would have done so willingly, albeit that the answers were far from clear and would have required a considerable amount of legal argument. However Beth’s parents indicated to the court that they were happy to limit the relief they sought to deletion of those few words and that they were content not to have another inquest. The Senior Coroner whilst remaining neutral on the 2024 s.13 application agreed what remained of the conclusion following the proposed deletions was complete and comprehensible.
The offending words were ordered to be quashed and the relevant part of Box 4 (with the redlining as shown) would therefore now read as follows :
“Bethany Shipsey was a young woman with significant mental health difficulties who, on 15 February 2017, died as a result of suicide having deliberately ingested a quantity of tablets containing the drug Dinitrophenol which she had purchased over the Internet.
She did so intending to take her own life and was admitted into the Worcestershire Royal Hospital at approximately 5:30 PM on that day…”
Comment
What made this case very different from earlier s.13 cases was that Beth’s inquest concluded with a lengthy narrative conclusion, and so the ‘red lining’ being proposed did not leave any blank or require the substitution of a different conclusion, as would have been the situation had the original conclusion been a short form conclusion of ‘suicide’ with nothing more.
Rather, beyond excising the offensive words the narrative conclusion remained, no other conclusion was being substituted into the Record of Inquest and no blank was left that a coroner/inquest needed to fill. Importantly, the court here was not a finding that Beth’s death was not from suicide, only that there was now sufficient fresh evidence to call the initial finding into question and that a different outcome was possible had a fresh inquest been held. In effect s.13(1) was a gateway to the remedies in s.13(2) leaving the question of whether a fresh inquest was actually required to still be addressed.
This was a creative solution where, despite their last minute applications, it became clear that the Claimants’ real priority was not pursuing a fresh inquest but correcting what they believed was an error in the first.
The judicial recognition of the availability of this ‘red lining solution’ should be welcomed by all coroners and inquest practitioners. It now provides a mechanism to easily put things right where new evidence emerges after an inquest, but where there is no real need to re-hear all the evidence again, (with the associated time, cost, distress to IPs and witnesses, administrative inconvenience and burden on the court) if in reality nothing more is to be learned.
It will however still be a rather limited remedy that is only available where the prospect of deletion of part of a longer narrative (whether in box 3 or a box 4) arises.
Briony Ballard of Serjeants’ Inn Chambers represented the Senior Coroner in this claim
Bridget Dolan KC also of Serjeants’ Inn represented the NHS Trusts
Your blogger is grateful to both of them for sharing copies of their skeleton arguments and hearing notes to better understand how this claim was argued.
Footnotes
[1] relying on the judgment of the Court of Appeal in R v Rebelo [2021] Cr App R 3, [2021] 4 WLR 52.
[2] Assisted by the Daily Mail, the Claimants had located the vendor, Mr Shepelev in Ukraine and when confronted by Beth’s father there (in 2019) he had admitted supplying the drugs to her.
[3] albeit the court’s provisional view was that the phrase should be interpreted in the same way as CPR 54.1(f), which defines an Interested Party for the purposes of Judicial Review proceedings as any person (other than the claimant and defendant) who is “directly affected” by the claim.
[4] at [122]
[5] see the Coroners and Justice Act 2009 (Consequential Provisions) Order 2013 (SI 2013/1874), Article 2(5)(e).
[6] see Jervis 15th edition at §19-10