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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Adath Yisroel Burial Society & Anor, R (on the application of) v HM Senior Coroner for Inner North London  EWHC 1286 (Admin) (25 June 2018)
Cite as:  4 Costs LR 749,  EWHC 1286 (Admin),  Inquest LR 118
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE WHIPPLE
| R (Adath Yisroel Burial Society and Mrs Ita Cymerman)
|- and -
|HM Senior Coroner for Inner North London
Ms Bridget Dolan QC and Ms Briony Ballard (instructed by London Borough of Camden) and then Mr Jonathan Glasson QC (instructed by Withers LLP) for the Defendant
Crown Copyright ©
Singh LJ and Whipple J:
 It will be apparent from this judgment that the answers to the questions I posed in para 3 above are: (1) 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; (2) 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; (3) 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; (4) 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 (3) 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 [where] there is no other very obvious candidate available to pay his costs.
i) The First Claimant's pre-action protocol letter was dated 19 December 2017. The Defendant answered it by a pre-action protocol response letter dated 3 January 2018.
ii) A meeting took place between the First Claimant, representatives of the Board of Deputies of British Jews and the Defendant on 19 January 2018, but it was not possible to agree an outcome.
iii) The Claim Form was then issued on 25 January 2018, attaching a statement of facts and grounds and relying on various witness statements. The Defendant served Detailed Grounds in response to the Claim Form on 28 February 2018. In that document, the Defendant maintained her position, in terms similar to those set out in her letter of 3 January 2018.
iv) Holman J joined the Chief Coroner as an interested party and gave case management directions on 31 January 2018, which were later varied by Singh LJ on 8 February 2018. On 23 February 2018, the Chief Coroner filed his Detailed Grounds, drafted by leading counsel. Those Detailed Grounds did not refer to the Defendant's Detailed Grounds and it is not clear whether the Chief Coroner had by that stage seen a draft of the Defendant's Detailed Grounds (which were in fact then filed a few days later). But he had certainly seen the pre-action correspondence, so was well aware of the Defendant's response to the Claimants' challenge. The Chief Coroner's position was that the Defendant's policy was unlawful on a number of grounds, some of which had been relied on by the First Claimant, but another two of which were new.
v) In the light of the position taken by the Chief Coroner, the Claimants invited the Defendant to withdraw her policy, by letters dated 4 March 2018 and 9 March 2018. In response to the Chief Coroner's intervention, on 8 March 2018 the Defendant in fact filed Addendum Detailed Grounds (undated). She did not have permission to file this document, although she sought it retrospectively, and service of it necessitated a change to the strict timetable which had otherwise been laid down in the directions made by Singh LJ. She sought to explain her policy and questioned some of the Chief Coroner's submissions. The Chief Coroner lodged his Response to the Defendant's Addendum on 11 March 2018, maintaining his position that her policy was unlawful.
vi) The claim was heard on 27 and 28 March 2018. The Claimants, the Defendant and the Chief Coroner each filed skeleton arguments in advance of that hearing. The Defendant's skeleton set out her arguments to counter the Claimants' and Chief Coroner's grounds. She invited the Court, if it was not supportive of her policy, to provide guidance about who should be prioritised and when.
vii) The Claimants and Chief Coroner were represented by counsel at the hearing. The Defendant was not represented. She was a "litigant in person". She made brief submissions in person to the Court after the other parties had finished their submissions, including the Claimants' reply. This then prompted the Claimants' counsel to make a further brief reply.
i) The Defendant has not acted neutrally because she has actively sought to defend her policy.
ii) The Defendant unreasonably declined to withdraw her policy or sign a consent order.
iii) The case is distinguishable from Davies because the Defendant in making her policy was not making a judicial decision.
iv) It is manifestly unjust that the Claimants should have to bear the costs of bringing and pursuing these proceedings.
Ground iii): Judicial or Administrative Act
Grounds ii) and iv): Unreasonable Conduct
" If the Chief Coroner had told me that in his opinion my approach was unlawful, then of course I would have reconsidered immediately. However, he did not."
She made a similar point in her Defendant's skeleton (see ).
Ground i): Loss of Neutrality
" 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 para 47(1) 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's case  QB 1206."
" … 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 CJ's and Lord Parker CJ'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."
Conclusion on Costs
i) First, the Defendant's failure to reconsider her policy in light of the Chief Coroner's intervention. This is an important consideration when considering where, in fairness, the Claimants' costs should fall (the fourth limb of Davies).
ii) Secondly, her Addendum Detailed Grounds, filed in answer to the Chief Coroner's detailed grounds, mark the point at which she ceased to be neutral in stance (second limb of Davies). By them and from that point she advocated the correctness of her policy. She was no longer simply giving information to the court.