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Inquest Costs: Separately Recoverable under the Fixed Recoverable Costs Regime

<!-- wp:paragraph --> <p>The Ministry of Justice (MoJ) has responded to the July 2023 consultation confirming that the costs of inquest proceedings will be recoverable separately, and the change will be inserted at CPR 45.1 (9) and come into force on 6 April 2024.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the consultation, which opened on 21 July 2023 and closed on 8 September, the MoJ had indicated a provisional view that the costs of inquests should be separately recoverable to the FRC, and subject to assessment, if these costs were reasonable and proportionate. And in making the rule change, the MoJ has confirmed that inquest costs should only be recoverable to the extent that they would be anyway, outside of FRC.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the multi-track, where FRC will not apply, the costs involved in an inquest can be recoverable.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The MoJ also 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 would make the pursuit of any claim for compensation uneconomic.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There were 74 responses to the consultation, which included a joint response from the Bar Council and the Personal Injuries Bar Association (PIBA). With the addition of this new rule for inquest costs, there appears to be recognition by the MOJ of the position outlined in the joint response from the Bar Council and PIBA that:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Inquests are an integral part of the process for investigating unnatural deaths and will inform and facilitate decisions taken about civil proceedings.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Many cases involving inquests will be complex. 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.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The addition of the new rule to allow the costs of inquests proceedings to be recovered separately clearly addresses the wide concern shared by many, including the MoJ, that the FRC rules as previously drafted may have impeded solicitors’ ability to pursue claims, and therefore may have impacted on the future ability of bereaved families to obtain representation unless they were able to fund this, wholly or in part, themselves. The new rule will therefore be seen as a positive step for access to representation in the inquest process.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Leila Benyounes is Head of the Inquests Team&nbsp;at Parklane Plowden Chambers and&nbsp;is ranked </em> <em>as a leading junior in Legal 500 and Chambers and Partners for Inquests and Inquiries. Leila’s full profile can be accessed </em><a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes"><em>here</em></a></p> <!-- /wp:paragraph -->

Inquests and the Fixed Recoverable Costs Reforms: To Be or Not to Be?

<!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the multi-track, where FRC will not apply, the costs involved in an inquest can be recoverable.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.&nbsp; 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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The joint response of the Bar Council and PIBA was that:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>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.&nbsp;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><a href="https://www.parklaneplowden.co.uk/our-barristers/leila-benyounes/">Leila Benyounes</a> 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 </em><a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes"><em>here</em></a>.</p> <!-- /wp:paragraph -->

A Matter of Interpretation – Santiago v MIB

<!-- wp:paragraph --> <p><strong>Interpreter Fees Recoverable in Fixed Costs Regime</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Santiago v MIB</em> [2023] EWCA Civ 838 the Court of Appeal confirmed that interpreter fees are recoverable under the CPR 45 fixed costs regime.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant, a Brazilian national who spoke Portuguese and had <em>“a poor grasp of English</em>,” was injured in a road traffic accident. He issued proceedings and obtained judgment. The First Defendant driver was uninsured and MIB was required to meet the unsatisfied judgment. The case was subject to the fixed costs regime.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant sought to claim the fees of an interpreter. The fees were refused by the judge at first instance, who felt constrained by the decision in <em>Aldred v Cham</em> [2019] EWCA Civ 1780. The Claimant appealed. The case was leapfrogged to the Court of Appeal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Cham</em> was a case that dealt, strictly speaking, with Counsel’s fees in certain fixed costs cases, which were ruled to be irrecoverable as a disbursement. However, due to interpreter fees being mentioned in the judgment as a possible example of other irrecoverable fees, litigants have tended to proceed on that basis ever since.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Santiago</em>, however, the Court of Appeal was clear in that the comments in Aldred were <em>obiter</em> and no more. In ruling that interpreter fees are recoverable, Stuart-Smith LJ held:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><!-- wp:list-item --> <li>There could be no suggestion that interpreter fees were intended to be included in the recoverable fees set out at Table 6B;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>When issues of access to justice arise, a broader interpretation is necessary to enable the dispute to be determined in accordance with the Overriding Objective (CPR1);</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The Court was not bound by Cham, that case having been on different facts and having been decided without specific consideration of CPR 1.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Accordingly, the Claimant’s appeal was allowed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A copy of the judgment is available on Bailii, view <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2023/838.html">here</a>.</p> <!-- /wp:paragraph -->

QOCS Rules To Be Shaken Up From April 2023

<!-- wp:paragraph --> <p>April 2023 will see significant changes to CPR 44.14.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>These changes will allow defendants to enforce costs orders made in their favour against costs orders made in favour of claimants.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Defendants will also be able to enforce costs orders up to the aggregate amount in money terms of any settlement, including cases concluding by way of acceptance of Part 36 offers and Tomlin Orders.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The effect of the new rule will be to reverse the decisions in Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654; [2018] 1 WLR 6137 (which precluded enforcement in cases where settlement had been agreed, rather than the court ordering an award of damages) and Ho v Adelekun [2021] UKSC 43; [2021] 1 WLR 5132 (which precluded the offset of costs against costs).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The new rule will apply to cases issued on or after 6<sup>th</sup> April 2023.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Current Rule</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>CPR 44.14 currently reads as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Effect of qualified one-way costs shifting</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>44.14</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the claimant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(2) Orders for costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(3) An order for costs which is enforced only to the extent permitted by paragraph (1) shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Amendment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The amendment, by virtue of The Civil Procedure (Amendment) Rules 2023, reads as follows:</p> <!-- /wp:paragraph --> <!-- wp:heading --> <h2>Amendment of Part 44</h2> <!-- /wp:heading --> <!-- wp:paragraph --> <p>24.&nbsp;&nbsp;In rule 44.14—</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(a)in paragraph (1), for “damages” substitute&nbsp;“, or agreements to pay or settle a claim for, damages, costs”;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(b)after paragraph (1), insert—</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>“(2)&nbsp;For the purposes of this Section, orders for costs includes orders for costs deemed to have been made (either against the claimant or in favour of the claimant) as set out in rule 44.9.”;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(c)renumber what was paragraph (2) as paragraph (3);</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(d)after what will now be paragraph (3), insert—</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>“(4)&nbsp;Where enforcement is permitted against any order for costs made in favour of the claimant, rule 44.12 applies.”; and</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(e)renumber what was paragraph (3) as paragraph (5).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The New Rule</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The amended rule, by virtue of The Civil Procedure (Amendment) Rules 2023, will read as follows (amendments in <strong>bold</strong>):</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Effect of qualified one-way costs shifting</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>44.14</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(1) Subject to rules 44.15 and 44.16, orders for costs made against a claimant may be enforced without the permission of the court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for <strong><s>damages</s> or agreements to pay or settle a claim for, damages, costs and interest </strong>made in favour of the claimant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(2) <strong>For the purposes of this Section, orders for costs include orders for costs deemed to have been made (either against the claimant of in favour of the claimant) as set out in rule 44.9.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(3) Orders for costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(4) <strong>Where enforcement is permitted against any order for costs made in favour of the claimant, rule 44.12 applies.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(5) An order for costs which is enforced only to the extent permitted by paragraph (1) shall not be treated as an unsatisfied or outstanding judgment for the purposes of any court record.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Practical Points</strong></p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><!-- wp:list-item --> <li>Defendant Part 36 offers are &nbsp;likely to have far more bite than they did previously.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Defendants will now effectively be able to enforce costs orders up to the aggregate amount of damages and costs awarded to a claimant.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Claimants, and their lawyers (who will now have more at stake themselves than was previously the case), are going to have to think very carefully before rejecting offers.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Claimants and their lawyers will have to think carefully before making or opposing interim applications, as adverse costs orders are now more likely to be enforceable.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>There may be a greater need for ATE protection and claimants will need to be advised accordingly.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>There may be a flurry of cases issued between now and 6<sup>th</sup> April as claimants seek to avoid being caught by the new rule.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>There will likely be satellite litigation. There always is.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Should you wish to discuss the above, please do not hesitate to contact me in chambers.</p> <!-- /wp:paragraph -->