Lord Justice Brooke :
- We handed down our judgment in this matter on 2nd December 2003, and we then reconvened on 14th January 2004 to hear the parties' submissions on costs. The claimant, who is legally aided, contended that the deputy coroner should be ordered to pay her costs both of the hearing before Moses J and of her appeal to this court. She relied in this context on the recent decision of this court in R (Touche) v Inner North London Coroner  EWCA Civ 383;  QB 1206. The deputy coroner argued that the order for costs in the court below should not be disturbed and there should be no order for costs of the appeal. Because these contentions raised important issues as to the liability of an inferior court or tribunal to pay the costs of the other side (and, conversely, to recover costs from the other side when an application fails) if it chooses to participate in public law proceedings, we decided to allow ourselves time to consider the matter before making an order as to costs.
- There can be no doubt that the court has jurisdiction to make an order for costs against a coroner, whether or not he takes part in the proceedings. On an application made under section 13 of the Coroners Act 1988, the jurisdiction is conferred by section 13(2)(b) of that Act. On an application for judicial review the jurisdiction stems from section 51(1) of the Supreme Court Act 1981. Any uncertainty that previously existed as to a local council's willingness to indemnify a coroner in respect of an order for costs made against him was removed by section 104(1) of the Access to Justice Act 1999 which inserted a new section 27A into the Coroners Act 1988. Section 27A(1) provides the requisite indemnity except in cases where a coroner initiates proceedings himself. These cases are covered by section 27A(2), which obliges a coroner to obtain an express indemnity before the proceedings begin.
- Four issues arise for consideration:
(i) What is the established practice of the courts when considering whether to make an order for costs against an inferior court or tribunal which takes no part in the proceedings (except, in the case of justices, to exercise their statutory right to file an affidavit with the court in response to the application)?
(ii) What is the established practice of the courts when considering whether to make an order for costs against (or in favour of) an inferior court or tribunal which resists an application actively by way of argument in the proceedings in such a way that it makes itself an active party to the litigation?
(iii) Did the courts adopt an alternative established practice in those cases in which the inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction and procedure and such like but did not make itself an active party to the litigation?
(iv) Whatever the answers to the first three questions, are there any contemporary considerations (including the coming into force of the Civil Procedure Rules ("CPR")) which should tend to make the courts exercise their discretion as to costs in these cases in a different way from the way in which it was regularly exercised in the past?
- Competing views on some of these matters can be found in my judgment in the Divisional Court in R (Hay) v Coroner for Lincoln  Lloyd's Med LR 264, with which Forbes J agreed, and the judgment of Simon Brown LJ (with which Keene LJ expressly agreed) in this court in R (Touche) v Inner North London Coroner  QB 1206. Needless to say, the latter judgment is binding on us unless we were satisfied that the court in Touche overlooked relevant case law of a material nature or that its decision could be treated as not binding on us on other grounds.
- There are three parallel strands of authority running through the cases, and it will be convenient to consider separately the caselaw relating to justices, tribunals and coroners. I will not dwell on the rare cases in which there is judicial review of a decision of a judge sitting in a county court, because in those cases a lis is generally joined between the competing parties and no question tends to arise in relation to the possibility of an order for costs against the judge himself.
- Justices experienced the same uncertainty as coroners as to whether they would receive an indemnity from central funds against an order for costs made against them until the position was put beyond doubt by recent legislation, which also gives the Lord Chancellor a role in the matter for the first time: see sections 53A and 54 of the Justices of the Peace Act 1997. When the "case stated" procedure was introduced in 1857 justices were protected against an adverse order for costs by section 6 of the Summary Jurisdiction Act 1857 (for the modern position, see section 28A(3) of the Supreme Court Act 1981 which gives the High Court an unfettered discretion as to costs). So far as the prerogative writs were concerned, in R v Goodall (1874) LR 9 QB 557 Lord Cockburn CJ said that the Divisional Court in some cases inflicted costs on justices who were guilty of some gross impropriety. The following year the High Court made an order for costs against a justice who ought not to have sat on a case in R v Meyer  1 QBD 173, but it is noteworthy that the law reporter commented in a footnote:
"The granting of costs when a rule is made absolute for a certiorari is contrary to the usual practice: see Gray on Costs p 466 where it is said: 'As there is no provision (in the statute 5 Geo 2, c 19) for the payment of costs where the order or other proceedings is quashed, neither party is in that case entitled to costs'."
- However that may be, section 3 of the Review of Justices' Decisions Act 1872 gave justices an express power to file an affidavit with the High Court setting out the grounds of the decision which was the subject of challenge together with any other facts that were considered to have a material bearing on the point in issue. If they did this, they could avoid the expense of having to instruct counsel to attend the hearing.
- By the time Lord Goddard became Lord Chief Justice (1946-1958), the High Court unquestionably possessed jurisdiction to order justices to pay costs when one of the prerogative orders were made against them, but in a series of judgments in a three-judge Divisional Court he explained clearly what was the practice of that court in these matters. In those days that court had much less business than the Administrative Court has today. The Lord Chief Justice would usually preside, and the judgments which I will cite reflected the understanding of all three members of the court as to the established practice of the court (whether or not it was reflected fully in reported case law) in relation to orders for costs against inferior courts or tribunals.
- In R v Willesden Justices ex p Utley  1 KB 397 justices had fined a defendant three times the maximum penalty for a driving offence. Counsel appeared for the justices in the Divisional Court to admit that the penalty was in excess of jurisdiction and to assist the court, by reference to caselaw, as to the course it should adopt. In its substantive judgment the court granted an order of certiorari to quash the conviction, but when counsel for the applicant applied for costs against the justices, Lord Goddard CJ said at p 400:
"It is the rarest thing for this court to give costs against justices. The only case is when justices have done something which calls for strong disapproval from this court. In the present case the justices made a bona fide mistake. If the present applicant had appeared, or had instructed an advocate to appear for him before the justices, the difficulty would not have arisen because the attention of the justices would have been called to the mistake at the time."
- In R v Coventry Rent Tribunal (1st December 1948, unreported) Lord Goddard said that the court would not grant costs against justices or similar tribunals merely because they had made a mistake in law, but only if the tribunal had acted improperly, that is to say perversely or with some disregard of the elementary principles which every court should obey, and even then only if it was a flagrant instance.
- Although it is another tribunal case, Lord Goddard's reported comments (and his decision) in R v Kingston-upon-Hull Rent Tribunal ex p Black  1 All ER 260 show the court beginning to make a distinction between cases in which the inferior court or tribunal did nothing in response to High Court proceedings (other than to file an affidavit in the case of justices) and cases where they appeared by counsel to contest the proceedings. In Black a landlord obtained an order of certiorari to quash an order of a rent tribunal which had reduced the rent of certain premises without hearing evidence on behalf of the landlord. Counsel appeared on behalf of the tribunal to oppose the making of the order, and it is instructive to read the discussion between the court and counsel:
"Lord Goddard CJ: In cases where justices appear and oppose, costs are sometimes given against them. They can file an affidavit, and if they only file an affidavit and do not appear, we do not give costs against them. In this case, however, the tribunal has appeared and made itself a party to this lis.
JHL Royle for the tribunal. That is so, my Lord, but in unreported cases the principle has been laid down that there must be perverseness on the part of the tribunal. It is submitted that there has been no perverseness here.
[Peter] Lewis [(for the landlord)]: My friend need not have been instructed to appear here. The tribunal might have read our affidavit and not opposed our application.
Lord Goddard: We decide this case on the ground that the landlord had to come here at considerable expense to herself, to have the decision of the tribunal quashed, and the tribunal have appeared by counsel and have disputed her right to have an order for certiorari. On the whole, as the tribunal have appeared here and contested the case, we think that the landlord ought to have her costs. … If there had been no appearance by the tribunal, of course we should not have given costs in this case."
- By this time Lord Goddard was concerned to check the tendency of justices to appear in his court when they could say all they needed to say in an affidavit. In R v Camborne Justices ex p Pearce  1 QB 41;  2 All ER 850, although the Solicitor-General appeared with a junior as amici curiae, counsel also appeared for the justices. The reports in the Queen's Bench series shows that he drew the court's attention to the caselaw on bias and submitted that in the present case no reasonable person could suspect that the justices' clerk would be able to influence the justices to cause them to have bias. Slade J ended the judgment of a court which included Lord Goddard CJ, by saying that the court had been much indebted to all the counsel concerned in the case for their assistance. The report in the All England Law Reports, however, shows that the court refused an application made on behalf of the justices for their costs to be paid by the solicitor who acted for the applicant. Lord Goddard said (at pp 854-5) that the 1872 Act gave the justices the right to file an affidavit in reply to the evidence of the applicant, and as there was no allegation of misconduct against the justices there was no need for them to have been represented by counsel.
- In R v Llanidloes Licensing Justices ex p Davies  1 WLR 809 justices appeared by counsel to resist, unsuccessfully, an application to set aside an order they had made in relation to the extension of licensing hours. In ordering them to pay the costs of the applicants Lord Goddard CJ said:
"If the justices appear in the Divisional Court they make themselves parties to the lis. They take the risk of being ordered to pay costs, and they are entitled to receive costs if they succeed in defeating the application. I have been trying to remind justices all over the country, not only in court, but in addresses I have given to them, of their rights under the Review of Justices' Decisions Act, 1872. That Act was passed for the very purpose of allowing justices, against whom certiorari or mandamus was moved, to put in affidavits (on which they do not have to pay any stamp duty) giving their reasons, so that the court could decide the case on the affidavits; but if justices insist on instructing counsel to come before the court and argue the case, they are making themselves parties to a lis and will have to pay costs. At one time this court very rarely ordered costs, and I think the reason was that the Act of 1872 was overlooked; but for at least three years now I have been trying to remind justices of the presence of this Act on the Statute Book, and if they are not content with exercising the power Parliament has given them, but insist on appearing and arguing the case, they will have to pay costs if they lose. The justices in the present case have made themselves parties before this court and opposed the application, and the applicant is entitled to costs against them."
- There can now be seen to be emerging a principle that if justices choose not to avail themselves of their statutory right to file an affidavit but appear in court to argue the case they make themselves parties to a lis, and as such parties may recover costs if they win and may be ordered to pay costs if they lose.
- The next two cases date from Lord Parker CJ's time as Lord Chief Justice (1958-1971) and evidence the court's reluctance to make an order for costs against justices (or even against prosecutors) if they do not appear at court to resist the granting of relief.
- R v Liverpool Justices ex p Roberts  1 WLR 587 was another case in which justices convicted a defendant without hearing him. In the Divisional Court counsel only appeared for the applicant, and the court refused to make an order for costs in his favour. Lord Parker CJ, who was sitting with Ashworth and Salmon JJ, said:
"So far as costs against the justices are concerned, it has been the practice not to grant costs against justices or tribunals merely because they have made a mistake in law but only if they have acted improperly, that is to say, perversely or with some disregard for the elementary principles which every court ought to obey, and even then only if it was a flagrant instance."
- The court then went on to say that its general practice was also not to award costs against a party who did not appear to resist an application of this sort unless, for instance, he had materially contributed to the error giving rise to the application. It therefore also declined to make an order against the absent prosecutor.
- In R v Hastings Licensing Justices ex p Lovibond  1 WLR 735 the court granted an order of certiorari to quash a decision of licensing justices. Although nobody except the successful applicants appeared at the hearing, their commercial rivals, who were the beneficiaries of the justices' order, had opposed the application until three months before the Divisional Court hearing. Lord Parker CJ said [at p 738]:
"As is well known, it is very rare that this court makes any award in regard to costs on an application for one of the prerogative orders, unless the other party has appeared and contested the application. [Counsel for the applicants] has, however, pointed out in the present case that [the respondents], no doubt under a bona fide misconception as to their rights under the Licensing Acts, succeeded in persuading the magistrates to adopt the same misconception and have fought this case, as it were, up to 14 December when they wrote saying they were no longer contesting the application. There is a precedent for making an award of costs in such a case: see R v Birmingham Union Guardians (1878) 44 LJMC 48."
The court therefore ordered the respondents to pay the applicants' costs up to 4th December (by which time, it appears from counsel's argument as reported at  2 All ER 270, 272, the applicants' briefs had been delivered.)
- The ground rules relating to cases involving justices were by now pretty well established. They were strongly encouraged to play no part in the High Court proceedings after they had filed their affidavit. If they took this course they would be at no risk as to costs except in a "flagrant instance" of improper behaviour. The court would, of course, generally be concerned to resolve a lis between prosecutor and defendant or between an applicant for a justices' licence and its competitors, and normally there would be no need for the justices to be represented, too. If they did appear, and fought the case, they would be generally at risk as to costs. In R v York City Justices ex p Farmery (1988) 153 JP 257, however, the court had expressly invited the justices to appear to explain their apparently unreasonable behaviour. In these circumstances they were not actively taking part in a lis, or actively contesting the proceedings, and the court, presided over by May LJ, refused to order them to pay costs to the successful applicants on the basis that this was not a flagrant instance of improper behaviour.
- All these, and other authorities, were considered by the Divisional Court in R v Newcastle-under-Lyme Justices ex p Massey  1 WLR 1684. By this time a procedural change now permitted the parties to uncontested judicial review proceedings to sign a draft consent order, thereby obviating the expense of a hearing, and the Divisional Court introduced a new rule of practice whereby justices who unreasonably declined to sign a draft consent order might be ordered, if the court thought it appropriate, to pay the costs of the subsequent hearing.
- I have shown how the Divisional Court applied the same general principles to cases involving tribunals as it did in cases involving inferior courts. In 1955 Lord Goddard CJ stated the practice of the court in relation to tribunals in uncompromising terms in R v Paddington South Rent Tribunal ex p Millard  1 All ER 691. Counsel had appeared for the tribunal at the hearing, but notwithstanding this Lord Goddard said:
"It does not matter to the tenant (who is legally aided) whether the costs come out of one fund or another, but so that we should not be making a precedent I do not think we should give costs against the tribunal. We never give costs unless they act improperly."
- Some tribunals exercise a highly specialist jurisdiction, and it often happened that such a tribunal might wish to be represented before the court to explain matters relating to its jurisdiction or procedure or to draw the court's attention to relevant decisions overlooked by the parties without in any way involving itself in the lis or contesting the application that was being made. A study of the frequent occasions in the late 1970s when counsel appeared before Lord Widgery CJ's Divisional Court on behalf of the Central Arbitration Committee in litigation arising out of the very complicated provisions of Schedule 11 of the Employment Protection Act 1975 will show that that committee never applied for costs and was never ordered to pay costs. Its role was a neutral one. It was there to assist the court with its expertise, conscious that if the court made an incorrect ruling through pardonable ignorance of some of the complexities of the legislative scheme, this might have a serious effect on the smooth handling of the many future cases that would be referred to the committee.
- Latham J (as he then was), who has great experience of practice in this field, would have had this Divisional Court practice well in mind in S v Special Educational Needs Tribunal and the City of Westminster  ELR 102. After ruling, on the proper interpretation of RSC Order 55 Rule 8, that the tribunal had no right to appear in the High Court because they were not a party to a statutory appeal from one of their decisions, he added:
"But the court has ample power to permit the tribunal to appear and be heard in appropriate matters. Where, as in the present appeal, issues of general principle as to jurisdiction and procedure are raised, and the tribunal has relevant material to put before the court, it is obviously appropriate for the tribunal to appear and be heard."
- If the tribunal did appear for this limited purpose, it would not be making itself a party to the lis or be concerned to contest the appeal. It would simply be making its expertise and knowledge available to the court, and the very fact of its appearance would not make it any more susceptible to an adverse costs order than if it had not appeared.
- The practice of the Divisional Court in these matters attracted the favourable attention of both the House of Lords and the Court of Appeal in recent years. In Holden & Co v Crown Prosecution Service (No 2)  1 AC 22, the House of Lords, three of whose members had held the office of Treasury junior counsel (common law) consecutively between 1964 and 1979, was concerned with a case in which the Court of Appeal had set aside wasted costs orders made in the Crown Court against four different firms of solicitors. The House of Lords for its part set aside an order made by the Court of Appeal to the effect that the costs of the solicitors' successful appeals should be paid out of central funds. In a speech with which the other four members of the House agreed, Lord Bridge said that he shared with the Court of Appeal the view, which was no doubt held by every judge brought up in the English system, that it was just for a successful litigant, and perhaps a fortiori a successful appellant, to be able to recover his costs from someone. Unfortunately, he said, it was not always so. After citing examples taken from the implementation of different arrangements for legal aid since 1949 and from cases where the costs of an abortive trial leading to an unopposed appeal and an order for a retrial could not be recovered from anyone, Lord Bridge said (at p 40):
"To take yet another example, it is relatively commonplace for a party who is the victim of a misjudgment by an inferior court or tribunal to have to seek relief by an application for judicial review in circumstances where the Divisional Court cannot hold another party or the inferior tribunal itself liable in costs and there is no power to award costs from public funds."
- It could be said that in this passage Lord Bridge was not expressly referring one way or another to the cases in which the inferior court or tribunal appeared by counsel in the High Court on matters concerned with jurisdiction or procedure or specialist caselaw without itself taking part in the lis. The same observation could also be applied to the decision of this court in Seifert v Pensions Ombudsman  4 All ER 947. The ombudsman did not appear on the appeal to Lightman J, who set aside certain parts of his determination and ordered him to pay the appellants' costs. Staughton LJ said of the fact that the decision had been modified on appeal:
"But that is not a sufficient ground to order him to pay costs. The limited circumstances in which an inferior tribunal, such as magistrates or an arbitrator, should be ordered to pay the costs of an appeal from its decision are well known … [W]e do not consider that it is a case for such an order."
- This survey of the caselaw reveals that the established practice of the High Court for many years was to make no order for costs against an inferior court or tribunal unless it behaved improperly in a flagrant way or unless it appeared at the hearing as a party to the lis to contest the application being made (or declined unreasonably to sign a draft consent order which might obviate the costs of an unnecessary hearing). Justices were encouraged to make use of the procedure set out in the 1872 Act, but no such statutory procedure was available to a tribunal which wished to assist the court without participating in the lis.
- These principles were unsurprisingly carried across to cases involving coroners. In R v West Yorkshire Coroner ex p Smith  149 JP 97 the deceased's father sought an order prohibiting the coroner from conducting an inquest on his dead daughter. One of his grounds was that the coroner might appear to be biased because he had an outstanding application for costs against the coroner arising out of an earlier application for judicial review in which the Court of Appeal had overruled the Divisional Court and held that the coroner did have jurisdiction to conduct an inquest even though the deceased had died abroad. Webster J observed that there was no criticism of the coroner in those proceedings, and that there never had been any suggestion of misconduct on his part. He continued:
"Mr Simon Brown [who appeared as amicus curiae] … submitted that it is singularly unusual for any order for costs to be made against [a public judicial body in the absence of any misconduct on its part, even if that body appears at the proceedings to resist the application. Where the body does not appear at the proceedings to resist the application … then in Mr Simon Brown's experience, he had never known of an order for costs being made against the judicial body in question in the absence of misconduct." [Emphasis added)
Webster J added that Mr Brown's understanding of the practice accorded with his own. No doubt he had in mind the dictum of Lord Goddard 30 years earlier, in a case in which a tribunal had been represented (see para 21 above).
- It is possible to see these principles being applied again and again by the Divisional Court in the next ten years in cases in which the coroner was represented at the hearing.
- In R v Hammersmith Coroner ex p Gray (1986) 151 JPR 209, a number of police officers obtained an order directing a new inquest in a case in which the coroner was held to have misdirected the jury in relation to a possible verdict of unlawful killing. Although the court had much sympathy for the coroner, because he was dealing with a case in which a verdict of unlawful killing by neglect was being ventilated, it considered that the jury had been gravely misdirected and confused by his direction to them on the law.
- Both the coroner and the deceased's family were represented at the High Court hearing. The court rejected some of the submissions made to them on behalf of the coroner and ordered a new inquest. When the successful applicants sought an order that the coroner should pay their costs, the official transcript shows that counsel for the coroner said:
"Your Lordships will be very familiar with the general proposition which has been applied in such cases before, Calvi [in which the coroner had been ordered to pay half the costs] notwithstanding. Coroners are in a very similar position to all those public bodies, such as benches of magistrates and so forth. If the body appears and takes part and disputes the entitlement of the applicant to the remedy sought, then the body is at risk on costs, subject to the further qualification that the conduct of the body or person calls for serious comment by the court, serious disapproval by the court. Anxious consideration was given, first of all, as to whether the coroner should ever appear in these proceedings. I can tell your Lordships the reason why he appears. It is because it became abundantly clear that the transcript was going to be defective and that one would have to try to assist the court by providing additional material. That is what we have done and I hope it has been of some assistance, not only to the court but to my learned friend. Secondly, there was the problem, which was not just a problem in relation to this inquest but in relation to future inquests, in relation to rule 42, the standard of proof. That is clearly set out in the coroner's first affidavit. Notwithstanding the passages read out by my learned friend, it has always been the intention of the coroner to take a neutral line. It has been done before. It is right and proper that the coroner should, in these circumstances, [not be ordered to pay the costs].
- After observing that a High Court judge might have been taxed by some of the issues in the case, Watkins LJ said:
"If an order for costs was made against this coroner … it would be no reflection upon him. It is equally wrong of course that a number of men have had to come here to have this inquisition quashed and have to pay for it. In vehicles of investigation of this kind when they go wrong the public should pay, should they not?
We will not make an order for costs against the coroner or a charge on the legal aid fund, but we regard the situation as unsatisfactory: that is to say, save by going to the legal aid fund or going to a local authority, who may or may not be behind the coroner, parties who have had to come and successfully come to upset an inquisition have to pay their own way. That is the position here. Regretfully we have to say that is how it must stand."
Today, of course, the local authority is bound to indemnify the coroner (see para 2 above).
- The next volume of the Justice of the Peace Reports contained two examples of cases in which experienced judges in the Divisional Court followed the principles advanced by Mr Simon Brown and accepted by Webster J in the Smith case, notwithstanding that the coroner had been represented at the hearing. In R v Shrewsbury Coroner's Court ex p British Parachute Association 152 JPR 123, Lloyd LJ and Mann J made a declaration to the effect that the coroner's jury had not been entitled to make a representation to which the Association took exception, but they refused to make any order for costs against the coroner. Lloyd LJ said that this was not a case where they could express strong disapproval of the coroner. He added that he was only following what was accepted to be a common practice, and there were no special features present, as there had been in Bithell 150 JPR 273.
- In R v Coroner for Southern District of Greater London 159 JPR 45 the Divisional Court (Kennedy LJ and Pill J) were concerned with a case in which it was submitted that the coroner had behaved unreasonably, not only in deciding that the deceased's two sisters were not properly interested persons within the meaning of Rule 20(2)(h) of the Coroners' Rules 1984, but also in the lead-up to that decision, which he had defended unsuccessfully in court. In his judgment Kennedy LJ said (at p 50) that one of the coroner's letters had been offensive and misleading. He went on to say (at p 55) that the route by which the coroner had arrived at his decision was so seriously flawed that the decision itself ought not to be allowed to stand. Although one of the two sisters had received emergency legal aid, the other was unlikely to qualify for legal aid. Although Kennedy LJ gave no reasons for the court's decision to order the coroner to pay the costs, there were the following features present:
(1) There was some evidence that the coroner had behaved "improperly";
(2) He defended his decision in court and entered the "lis";
(3) The applicants would have to pay a significant amount of costs themselves if the costs order was not made against the coroner.
- The following year the Divisional Court (McCowan LJ and Buxton J) directed the coroner to pay the applicant's costs in R v Coroner for Kent (Maidstone District) ex p Johnstone  6 Med LR 116. The report of this case is instructive because it contains a transcript of the long discussion about costs which followed the judgment. McCowan LJ made it clear that the matters which influenced the court were:
(1) Although it was not a case which called for strong disapproval of the coroner's actions, the court had attached some measure of blame to him;
(2) More importantly, he had sought to defeat the challenge to his decisions, and was certainly not represented in the role of amicus curiae, or anything of that nature. He would no doubt have been seeking his costs and would have been entitled to them if he had won;
(3) The applicant was not legally aided;
(4) The court was unable to recognise any principle that said that in these circumstances some special protection should be give to the coroner.
- In R v Coroner for Wiltshire ex p Clegg 161 JPR 521 the Divisional Court (Phillips LJ, Hooper J) made an order for costs against a coroner who merely swore an affidavit and took no part in the proceedings at all. I explained in my judgment on costs in R v Lincoln Coroner ex p Hay  Lloyd's Med LR 278 why I considered that this order did not follow the established practice of the court in any way. This was another case in which the court was concerned about its inability to award a successful applicant her costs from any other source.
- In my judgment in Hay, with which Forbes J agreed, I approved the correctness of the relevant text in the 11th Edition of Jervis on Coroners. When a coroner appeared at the hearing in the High Court I said (at p 279) that the relevant principles appeared to be that:
(1) If a coroner not only filed an affidavit but also appeared and contested the making of an adverse order in an inter partes adversarial mode, then he or she was at risk as to costs;
(2) If on the other hand, the coroner, as was fitting for somebody holding judicial office, swore an affidavit to assist the court and then appeared in court, more in the role of an amicus rather than as a contesting party, then the court was likely to follow the normal rule set out in Jervis and make no order as to costs provided that it did not express strong disapproval of his or her conduct.
- These principles were expressly disapproved by the majority of this court (Simon Brown and Keene LJJ, Robert Walker LJ expressing no opinion on this point) in R (Touche) v Inner London North Coroner  EWCA Civ 383;  QB 1206.
- Touche raised a very difficult issue of coronial law. The applicant's wife had died of a cerebral haemorrhage, the result of severe hypertension, possibly secondary to eclampsia. The coroner decided not to hold an inquest. The issue in the litigation was whether he was required to hold an inquest because there was reasonable cause to suspect that she had died an unnatural death. The Divisional Court (Kennedy LJ and Morison J) quashed the coroner's decision and ordered him to pay the costs of the application. When the coroner appealed, both on the merits and on the costs order, this court dismissed his appeal. The Divisional Court did not have my judgment in Hay drawn to their attention when they made their order. The deceased's husband did not qualify for legal aid. There was no issue as to the costs of the coroner's appeal, which followed the event when he lost the appeal.
- In ruling that the coroner should pay Mr Touche's costs at first instance, Simon Brown LJ said that the coroner's behaviour had not attracted the slightest criticism. On the contrary he had conducted himself impeccably and if a costs order against him was to be justified, this could only be because he had failed in the event to meet the challenge.
- His reasons for dismissing the appeal on costs and for disapproving what I said in Hay were set out in paragraph 54 of his judgment. They can be summarised as follows:
(i) Simon Brown LJ could find no basis in earlier authority for the suggested distinction I made in relation to the coroner's two possible roles when he appeared in court;
(ii) It appeared to him difficult in practice to apply the distinction, because both roles postulated that he would be resisting the challenge and arguing the relevant law;
(iii) Amici curiae played different roles according to the requirements for their assistance;
(iv) It was not easy to determine what role the coroner had played in the case of Touche, particularly as he appealed after losing at first instance: an amicus does not (and cannot) appeal;
(v) If the coroner had won in the court below, he would certainly have asked for and, no doubt, been awarded his costs;
(vi) Although the court was greatly assisted by the coroner not merely swearing an affidavit but also appearing to argue the case, particularly as it raised a true point of law of general application, it seemed hard on the applicant that the more important the point, the less likely he would be to recover his costs.
- In the ensuing paragraphs of his judgment Simon Brown LJ made the following additional points:
(1) It would be a pity if courts were deprived of the assistance of coroners if they were regularly to be condemned in costs if they lost, but it would always be open to the court to ask for an amicus, and at least then an applicant's position as to costs would be fair: he would simply have to bear his own costs irrespective of the outcome (para 55);
(2) The response to the argument that the applicant's costs at the first instance hearing were probably very little greater than if the coroner had chosen not to be represented was that it was an anomaly whereby a judicial officer could generally exempt himself from any costs liability even though his decision was found unlawful by choosing not to appear, and this anomaly ought not readily to be extended (para 56);
(3) The language of section 13 of the Coroners Act 1988 gave the court an unfettered discretion to "order the coroner concerned to pay such costs of and incidental to the application as to the court may appear just", and there was no sufficient reason to subject the exercise of this discretion to limitations as rigorous as those suggested by ex p Hay (para 57);
(4) There was no question of the coroner personally having to pay the applicant's costs, and in the result, given that Parliament had chosen not to heed repeated pleas by the court that there be power in this sort of case to order costs out of public funds, the Divisional Court's decision, made per incuriam the decision in ex p Hay, would be affirmed (para 59).
- The wider review of the earlier practice of the Divisional Court which is contained in this judgment has disclosed plenty of evidence to support the distinction I made in ex p Hay about the coroner's two possible roles. In my experience it has always been perfectly possible for counsel instructed by a tribunal to take a neutral role in an effort to assist the court on relevant aspects of law and procedure, and the cases in Lord Goddard's and Lord Parker's time made a clear distinction between the situations in which the inferior court or tribunal played an active part in the lis by arguing the correctness of the decision under challenge, and those in which it did not. Special considerations applied to justices, who enjoyed the special statutory right conferred on them by the 1872 Act, so that it was generally unnecessary for them to be represented at the hearing, and in any event the High Court would be naturally more familiar with law and practice in a magistrates' court than with law and practice in a specialist jurisdiction – or in a coroner's specialist field.
- Whatever the established practice of the Divisional Court may have been in earlier years, it is obviously necessary to revisit the scene today in the light of the judgment in Touche and the other changes that have occurred in recent years. Among these I would include:
(i) The codifying of the costs rules in the CPR;
(ii) The Government's continuing unwillingness to permit the courts to make an order that an applicant's costs be borne by central funds in an appropriate case;
(iii) Budgetary pressures which make public bodies (including judicial bodies) more prone to instruct their advocate to seek an indemnity from another party for the legal costs they have incurred in "successful" court proceedings;
(iv) The fact that a coroner now has a clear statutory indemnity in respect of any adverse order for costs;
(v) The growing incidence of High Court challenges by applicants who are not supported from another source, such as legal aid, an employer, or a trade union;
(vi) The effect of Article 2 of the European Court of Human Rights, as explained in recent judgments, including our earlier judgment in the present case.
- All these factors are new, or have assumed new importance, since the days of Lord Goddard and Lord Parker. I will review them quickly in turn:
(i) CPR 44.3(2)(a) provides unequivocally that the general rule is that the unsuccessful party will be ordered to pay the costs of a successful party, but this does not throw any light on the position of a neutral party. In any event, CPR 44.4(a) provides that the court must have regard to the conduct of all the parties, and if a tribunal or a coroner is studiously neutral in the submissions it or he/she makes to the court, that is a factor to be taken into account. On the other hand the emphasis on justice and fairness in CPR 1.1 will oblige the court to examine anxiously whether a source of public funds is available if a privately funded litigant like Mr Touche has to initiate court proceedings in order to obtain an inquest into the death of a member of his family;
(ii) The Government has paid no heed to the plea of Watkins LJ, the Deputy Chief Justice, in ex p Gray (see para 31 above). Nor has it paid any heed to the recommendation of the Law Commission in its Report No 226 (1994), para 10.6, to the effect that the courts should be able to order costs out of central funds in an appropriate public interest challenge in a judicial review application;
(iii) Simon Brown and Keene LJJ will have been very well aware of the pressure on counsel acting for public bodies in the last ten years to seek orders for costs if successful in litigation when 20 years ago they would have been content to allow costs to lie where they fell;
(iv) Any uncertainty as to whether a coroner might have to pay an adverse order for costs out of his own pocket has now been resolved by the 1999 Act (see para 2 above);
(v) The burgeoning of public law challenges of all kinds (including challenges to coroners' decisions) over the last 15 years have simply accentuated the dilemma faced by the court when an applicant has had to pay for the cost of a successful High Court challenge and there is no readily obvious source of public funds to indemnify him for the expense to which he has been put;
(vi) This dilemma is now accentuated by the fact that recent case-law has made it clear that under ECHR Article 2 the state is obliged to provide an effective inquiry into a death like the death with which we are concerned in the present case (see also R (Khan) v Secretary of State for Health  EWCA Civ 1129), and it would appear unjust that a private citizen should have to be put to heavy expense in order to oblige the state to perform its duty properly;
(vii) The very heavy pressures on the funds available to the Legal Services Commission no longer make it possible to justify the refusal of a costs order on the basis that one public fund would simply be paying another. I do not consider, however, that it is appropriate to take into consideration the fact that the remuneration of counsel (and particularly leading counsel) on a legally aided appeal of this kind is now extremely low (by the standards of the private sector market) and that counsel and solicitors would financially benefit from a costs order in their favour. There is nothing in the Costs Rules to suggest that the financial welfare of a party's lawyers is a legitimate consideration when a court makes an order as to costs.
- This judgment has been necessarily a long one, not only because there was a need to set out clearly the earlier Divisional Court practice in the light of the judgments in this court in Touche which did not give the whole picture, but also because with the impending advent of a new Tribunals Service it seemed an opportune moment to state authoritatively the way in which the courts have exercised their discretion in these matters in the past and to identify what are the governing principles today.
- It will be apparent from this judgment that the answers to the questions I posed in paragraph 3 above are:
(i) The established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings;
(ii) The established practice of the courts was to treat an inferior court or tribunal which resisted an application actively by way of argument in such a way that it made itself an active party to the litigation, as if it was such a party, so that in the normal course of things costs would follow the event;
(iii) If, however, an inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction, procedure, specialist case-law and such like, the established practice of the courts was to treat it as a neutral party, so that it would not make an order for costs in its favour or an order for costs against it whatever the outcome of the application;
(iv) There are, however, a number of important considerations which might tend to make the courts exercise their discretion in a different way today in cases in category (iii) above, so that a successful applicant, like Mr Touche, who has to finance his own litigation without external funding, may be fairly compensated out of a source of public funds and not be put to irrecoverable expense in asserting his rights after a coroner (or other inferior tribunal) has gone wrong in law, and there is no other very obvious candidate available to pay his costs.
- I do not regard this outcome as at all satisfactory, but it stems from Parliament's unwillingness to allow a successful applicant to be reimbursed from central funds for the expense to which he has been put when there is no other potential source of public funds available for this purpose.
- Needless to say, if a coroner, in the light of this judgment, contents himself with signing a witness statement in which he sets out all the relevant facts surrounding the inquest and responds factually to any specific points made by the claimant in an attitude of strict neutrality, he will not be at risk of an adverse order for costs except in the circumstances set out in paragraph 47 (i) above. In those circumstances the court may be obliged to request the assistance of an advocate to the court, as Simon Brown LJ suggested in Touche.
- This is a much less satisfactory solution than was afforded by the earlier practice I have described, unless the advocate to the court makes it his business to seek the assistance of the coroner and the Coroners' Society (which has been very helpful to the court on occasions in the past), in which case the disappearance of the coroner from the actual hearing would seem to be completely artificial. It may be that if the coroner makes a pre-hearing application to the court for directions of the type suggested by Chadwick J in Providence Capitol Trustees Ltd v Ayres  4 All ER 760, 765e-f, any potential ambiguity about his role in the proceedings and his status viz-a-viz any potential costs orders (one way or the other) might be satisfactorily resolved.
- I do not consider it appropriate to say more than this in the present judgment. It may be that the Rules Committee may consider that further guidance by way of a practice direction is desirable.
- So far as the present case is concerned, Mrs Davies has been in receipt of legal aid throughout, so that she is not in the same position as Mr Touche. In my judgment it would be unjust to require the deputy coroner to pay her costs of the hearing before Moses J. He found in his favour correctly according to the law as it stood at that time. On the other hand, the law had moved on in significant respects by the time of the appeal to this court. It would have been open to the deputy coroner not to appear on the appeal, in which case we would almost certainly have had to adjourn the matter and request the services of an advocate to the court. Instead, he appeared and argued and lost the appeal, and it was not so strongly argued that he should not pay the costs in this court. In my judgment he ought to pay the costs of the appeal.
Lord Justice Longmore:
- I agree with Brooke V-P's conclusion that the deputy coroner should not have to pay Mr Davies' costs before Moses J but should pay her costs of this appeal.
- I only add that in relation to appeals against the decision of the Pensions Ombudsman where, as my Lord notes in para 26, a similar problem can arise, the law appears to be that, if the ombudsman takes part in the appeal and makes himself a party to the lis, he is at risk as to the costs of the appeal, see Providence Capitol Trustees Ltd v Ayres  4 All ER 760, 763. These are presumably the limited circumstances to which Staughton LJ referred in Seifert v Pensions Ombudsman  All ER 947. But a practice appears to have grown up whereby the ombudsman will only be ordered to pay the costs of a successful appellant
"to the extent to which they have been increased by the ombudsman's appearance on the appeal."
University of Nottingham v Eyett (No 2)  1 WLR 594, 597A. This affords a possible middle way but, unless the court which allows the appeal is prepared to conduct the assessment of costs itself, it must present a considerable conundrum for the costs judge.
Sir Martin Nourse:
- I also agree with the judgment of Lord Justice Brooke and the order proposed by him.
- In para 54 of his judgment in R (Touche) v Inner London North Coroner  QB 1206, 1220H, Simon Brown LJ said:
"I have, I confess, some difficulty with the approach in ex p Hay. In the first place I can find no basis in earlier authority for the suggested distinction between the coroner's appearance on the one hand as 'a contesting party' ('contest[ing] the making of an adverse order in an inter partes adversarial mode'), and on the other as 'an amicus'."
As to that observation, it must be said, first, that the earlier authorities cited in argument in that case appear to have been few in number and recent in origin; second, that the much fuller review of the authorities that has now been conducted by Lord Justice Brooke provides a more than adequate basis for the distinction suggested by him in ex p Hay.
- In Touche, at p1221A, Simon Brown LJ continued:
"Secondly, it seems to me difficult in practice to apply this distinction. How does one tell which role the coroner is playing? Both postulate that he will be resisting the challenge and arguing the relevant law. It can hardly be by reference to the force of his (or his counsel's) submissions. Amici curiae indeed, played different roles according to the requirements for their assistance…."
- With respect to that observation, I think that the difficulty is more imagined than real. The state of affairs contemplated by Lord Justice Brooke in ex p Hay was that the coroner would appear "more in the role of an amicus than as a contesting party". The question whether, in any given case, a coroner has ceased merely to assist the court and become a contestant is no more difficult to resolve than many other questions which arise when costs are in issue. Moreover, I agree with Lord Justice Brooke (see para 50 above) that the earlier practice described by him is much more satisfactory than one which would make it necessary in many cases for the court to ask for the assistance of an amicus.
- While recognising the authoritative status of the views expressed in Touche, I think it would be most unfortunate if they tended to establish a practice, in regard to costs, of treating coroners in the same way as any other litigants. There is always a residual discretion as to costs. In the present case, I agree that it would be unjust to require the deputy coroner to pay Mrs Davies's costs of the hearing before Mr Justice Moses.