A circuit judge has upheld a decision that costs incurred in attending an inquest were recoverable as costs in a subsequent action under the Fatal Accident Act because the defendant had failed to make an appropriate admission within the meaning of the CPR.
His Honour Judge Pearce in Manchester said this meant it was reasonable for the claimant’s lawyers to attend the inquest and seek to recover the costs from the defendant.
Greater Manchester Fire and Rescue Service v Veevers [2020] EWHC 2550 (Comm) concerned a claim brought by the estate of deceased firefighter Stephen Hunt against his employer.
Shortly before the inquest into his death, solicitors for the fire service advised the widow’s legal team that, whilst not admitting liability, their client was prepared to pay damages and would not seek to allege contributory negligence. The aim was to alleviate stress on Mr Hunt’s family.
They also made clear that they were exploring the potential culpability of the owner/occupier of the hairdressers where the fire took place, which was why they were unable to make an open admission of liability at that time.
The claimant’s solicitors acknowledged this but insisted upon an open admission of liability on the basis that the willingness to pay compensation could be withdrawn at any time. No such admission was made prior to the inquest.
The fire service admitted liability, paid compensation and agreed to pay her reasonable costs. During the assessment process, an issue arose as to whether the claimant was entitled to recover the costs of preparing for and attending the inquest – about £141,000 out of a total bill of just over £334,000.
The claimant argued that it was necessary as there had not been a full admission of liability at that point. The defendant submitted that what it had submitted was tantamount to one.
Deputy District Judge Harris, sitting as the regional costs judge for Manchester, held that the costs were in principle recoverable, subject to detailed assessment. He said that, while an admission of liability prior to an inquest was “an important factor to be taken into account as to whether or not incurring the costs of the inquest are justifiable/recoverable”, on the facts there was no admission.
He accepted that the claimant was entitled to perceive a risk that the defendant might resile from its statement that it would compensate the estate and dependents of Mr Hunt.
HHJ Pearce upheld the decision on appeal. “I have borne in mind the argument advanced by [Roger Mallalieu QC, for the defendant] that a responsible public body in the position of the appellant may wish to make clear that it will make payment of compensation to a person at an early stage and without admission of any particular basis of a claim. It is indeed true that responsible discharge of the powers and duties of a public body may lead to such a wish.
“But the argument that in some way a statement in such circumstances that is not in form an admission should have the same weight as an admission is in my view not sustainable.”
If the public body was ultimately going to admit liability, there was no reason not to do so at an “early stage”, HHJ Pearce said, adding that CPR 14.1A set out a clear procedure for making a formal admission.
“It would be undesirable if uncertainty were created by giving equal effect to other communications that do not satisfy that description. If the defendant chooses to make a communication which is not an admission within the meaning of the CPR, that document will be one factor in the case, but the availability of a route to making a formal admission that puts liability beyond argument will mean that the court is entitled to place less weight on it in the overall conclusion.”
The deputy district judge “carried out a balancing exercise on the facts of the case and reached a conclusion that lay well within the proper ambit of the exercise of his evaluation of the facts”.
He was therefore entitled to conclude that the costs of preparing for and attending the inquest were costs “of and incidental” to the claim and were in principle reasonable and proportionate – although whether the amount was reasonable and proportionate remained a matter for assessment.
Roger Mallalieu QC (instructed by Berrymans Lace Mawer) for the appellant/first defendant. Nicholas Bacon QC (instructed by Thompsons) for the respondent/claimant.