Inquests and the Fixed Recoverable Costs Reforms: To Be or Not to Be?
Access to representation in the inquest process in relation to costs recoverability presently hangs in the balance as the final government proposals following the July MoJ consultation on Fixed Recoverable Costs (FRC) are awaited. Amongst other issues, the recoverability of inquest costs in Fatal Accident Act cases is part of the FRC consultation.
The consultation opened on 21 July 2023 and closed recently on 08 September. The MoJ has indicated a provisional view that a new rule should provide that for cases allocated to the Fast Track and to the Intermediate Track, the costs of inquests should be separately recoverable to the FRC, and subject to assessment, if these costs were reasonable and proportionate.
The FRC will come into force imminently on 01 October for cases issued, or a cause of action accruing, after this date and there is still no decision in respect of a new or amended rule regarding the recoverability of inquest costs.
The consultation highlighted recognition by the MoJ that as part of any proper investigation process, an inquest will typically pre-date, and may (to an extent at least) enable the litigation.
In the multi-track, where FRC will not apply, the costs involved in an inquest can be recoverable.
The MoJ has acknowledged as part of the consultation that without the addition of a new rule in the CPR to provide for the separate recoverability of inquest costs in FRC cases that the level of costs involved in the inquest will make the pursuit of any claim for compensation uneconomic. Indeed, in such circumstance if a bereaved individual’s claim is pursued, they will need to fund most of (if not all) of the costs involved in the representation at the inquest.
The MoJ welcomed general views on its proposals. The Bar Council and the Personal Injuries Bar Association (PIBA) provided a joint response indicating agreement with the MoJ that this is an issue which needs to be addressed and an amended rule should allow for inquest costs to be separately recoverable to FRC subject to assessment.
The joint response of the Bar Council and PIBA was that:
- Inquests are an integral part of the process for investigating unnatural deaths and will inform and facilitate decisions taken about civil proceedings. The rules should allow for such costs to be recovered in a civil claim to which FRC applies, bringing the Fast and Intermediate Tracks into line with the Multi Track in which such costs are recoverable.
- It would be wrong to be overly prescriptive in defining the cases when inquests costs ought to be recoverable. Those claims that may be made following an inquest are not limited to claims for dependency under the Fatal Accidents Act 1976. There will be claims on behalf of the estate under the Law Reform (Miscellaneous Provisions) Act 1934; and accidents involving fatalities which found claims for family and non-family members for psychiatric injury as primary and secondary victims. Claims involving the deaths of children and young adults can be complex, but the damages recoverable can be limited to the levels set out in the Fast and Intermediate tracks.
- Many cases involving inquests will be complex, and they should fall outside both the Intermediate and Fast Tracks. The CPR have recognised that claims brought by dependants under the Fatal Accidents Act are complex, and these should be excluded from the Fast Track. The Bar Council would support a rule to that effect. The Bar Council is less sure about to what extent such cases should also be excluded from the Intermediate Track. There will be some cases when the facts of an inquest greatly assist the determination of civil liability, and admissions may be made, and judgment entered. These cases may be suitable for the Intermediate Track as a result. It is important that the CPR allow for inquest costs to be recovered in these circumstances.
- The Bar Council appreciates that drafting such a rule is not straightforward but is particularly concerned that it is important the recoverability of inquests costs is dealt with promptly so such costs can be recovered when the new rules take effect on 01 October 2023.
It is clear that implementation of FRC will have a significant impact on litigation. The MoJ has acknowledged that the FRC rules as currently drafted may impede solicitors’ ability to pursue claims, and therefore may equally impact on the future ability of bereaved families to obtain representation unless they are able to fund this, wholly or in part, themselves. Therefore the final outcome for the FRC proposals and the rules in relation to inquests are eagerly awaited.
Leila Benyounes is Head of the Inquests Team at Parklane Plowden Chambers and is ranked as a leading junior in Legal 500 and Chambers and Partners for Inquests and Inquiries. Leila’s full profile can be accessed here.