Liability of magistrates, coroners and quasi-judicial bodies for costsDavid Partington
“Litigation is a hazardous and expensive business.”
Thus began the skeleton argument of my opponent in the Paddico case which I refer to below. He was (and remains) a leading counsel with a high reputation in the field of property work and he was, of course, correct.
Part of my practice has involved applications concerning the registration of land as town or village greens under the Commons Registration Act 1965 as was, and latterly the Commons Act 2006. Without going into the ins and outs of the applications, the matter became one of distinct importance because registration as a “green” had the effect of stultifying development on the site. For reasons which are not material to the body of this article, from the mid 1990s onwards such applications became a fierce battleground between would be developers or those who wished to sell off land for development and those determined to prevent such development occurring, often taking the form of local residents groups intent on preserving the green or open space near their homes. Parliament cannot have known or intended when it enacted, then amended and then re-enacted that legislation that it would ignite a firestorm of contested applications and divert a considerable proportion of the higher judiciary’s attention, intellect and patience.
Local authorities were charged with maintaining a register of greens. The accepted method of determining such applications came to be recognised as a non statutory public inquiry, chaired by a senior barrister or solicitor familiar with the topic sitting as an inspector. The inspector would then advise the relevant local authority as to what the appropriate outcome of the application should be, and by convention the local authority would adopt the conclusion. Challenge to the decision of the was usually made by judicial review on the grounds of some error of law on the part of the inspector, thus adopted by the local authority in question.
In Paddico (267) Ltd v Kirklees Metropolitan Council, Magee and Hardy (“Paddico”) the Kirklees was the local authority charged with keeping the register of greens. An application was made to register land as a green by Mr. Magee and Mr. Courtney-Hardy. The application was successful and the site so registered in 1996. Matters rested there for some years until the land was purchased by the claimant, Paddico (267) Limited. Paddico was a vehicle of a developer which specialised in purchasing such sites and then challenging the fact of registration in the courts. In 2010 it applied for an order that the land be removed from register on the grounds that it had been wrongly registered as a green, the Kirklees council and the original applicants Mr. Magee and Mr. Hardy as defendants. However, crucially, Mr. Magee and Mr. Hardy obtained the benefit of a protective costs order on the grounds that they had no personal interest in the case as such, but there was a legitimate public interest to be has in hearing their argument against the application.
It was at this point that I was instructed on behalf of Kirklees. My initial instructions were broadly to act on the council’s behalf in resisting the application. My advice to the council was, in the clearest possible terms: (1) the original decision was fatally flawed, for reasons which are not material to this article and (2) the council should not appear in the case itself. It should remain neutral, having fulfilled its quasi judicial role to the best of its ability and abide by the decision of the High Court. The council followed this advice.
The application to the High Court was initially successful, for the reasons I had anticipated. However, what I did not anticipate was that, with the original applicants protected from an award of cost against them, Paddico would then try to obtain an order for its costs from the Local Authority. The costs were substantial – circa £150,000.
Case law and costs
It is well established that there is no inflexible rule that a successful litigant is entitled to expect his costs from somebody.
There is a perfectly legitimate view that certainly since the introduction of the CPR, case law in relation to costs issues is of limited assistance. One simply applies the factors the factors set out in CPR 44.3 to the individual facts of each case. However, there is a not insignificant quantity of case law in relation to potential costs awards against tribunals. These received an extensive and detailed review in R (Davies) v Birmingham Deputy Coroner (“Davies”).
In Davies, D was sent to prison. He was a heroin addict. He was given an initial medical assessment on arrival but fell ill soon after. He was seen by a psychiatric nurse, but died before he could be seen again by the doctor. There were issues about the cause of death and whether the care regime had been adequate. A verdict of accidental death was returned. The claimant was D’s wife. She was legally aided, and brought judicial review proceedings alleging defects in the way the coroner had summed up the case. The coroner appeared at that hearing and the claim was dismissed. The judge made an order that costs of the claimant be subject to detailed assessment but no further order. The claimant appealed to the Court of Appeal and again the coroner actively resisted the appeal. However, by the time the case reached the Court of Appeal the law had changed, and the claimant’s appeal was allowed. The issue of costs received its own independent judgment. The leading judgment was given by Brooke LJ with whom the other members of the Court of Appeal agreed.
Brooke LJ said four issues arose for consideration:
- What was 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?
- What was 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?
- 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?
- Whatever the answers to the first three questions, were there any contemporary considerations (including the coming into force of the Civil Procedure Rules) 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?
The judge then carried out an extensive review of case law in each of the three areas where the liability of the tribunal before which a case has originally been heard can for costs can arise when the matter is subject to appeal or review in a higher court, namely:
- Other “inferior” tribunals
In respect justices, a number of cases from the late 1940’s and 1950s appeared to establish the two broad principles. First, that the High Court would not make an award of costs against justices or similar tribunals if their decision was quoshed merely because they had made an error in applying the law.
It was necessary for the tribunal to have acted improperly in the sense of perversely or if there had been some flagrant disregard of elementary principles which every court or tribunal should observe. Second, where there was no improper conduct then the question appeared to turn on whether the justices put in active opposition to the challenge to their decision.
For example, In Llanidloes Licensing Justices, Ex p Davies 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….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.”
R v Liverpool Justices ex p Roberts was another case in which justices convicted a defendant without hearing him. In the Divisional Court the justices put in no appearance. The application for judicial review succeeded and the applicant sought an order for costs against the justices, which was refused. 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.”
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.”
These authorities were reviewed by the Divisional Court in R v Newcastle-under-Lyme Justices ex p Massey. 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 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.
It was held that:
- Although costs could be awarded against justices, a successful litigant has no automatic right to costs.
- Justices who merely filed affidavits and did not appear in active opposition would not normally have an order for costs made against them.
- However, justices should not normally appear unless their good faith was being questioned or there were other exceptional circumstances. If they do appear they are unlikely to be awarded costs if successful but they will be at risk as to costs if they lose. 
- However, the refusal of the justices to sign a consent in the proceedings which was contrary to the recent practice direction was unreasonable, and resulted in costs being awarded against them. It was important to note that it was only the costs stemming from the unreasonable refusal to sign the consent, not the costs of the proceedings generally. An order for the costs of the proceedings generally still required exceptional circumstances.
In Brooke LJ’s view, the same general principles applied to appeals or reviews of other inferior courts and tribunals. The approach was summed up by Lord Goddard CJ in R v Paddington South Rent Tribunal, Ex P Millard where Lord Goddard CJ said the rule was “we never give costs unless they act improperly.”
Where the tribunal occupied a special position because its unique expertise it may be permissible for the tribunal to appear where the tribunal appears only for the purposes of making that knowledge and experience available. 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 principle then was summed up in Davies by Brooke LJ at paragraph 27:
“This survey of the case law 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).”
One case not referred to by Brooke LJ in Davies was Providence Capitol Trustees v Ayres (“Ayres”). It was, however, referred to by Longmore LJ. In Ayres there was a successful appeal to the High Court against the decision of the Pensions Ombudsman. The Pension Ombudsman did not appear or resist the appeal. The appellant sought his costs of the appeal. Chadwick J refused that application, citing and approving Ex p Black, Ex p Davies and Ex p Massey. Longmore LJ said that this was an example of the principle 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, But even then in the 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”.
Brooke LJ The judge then turned to the specific question of orders for costs against coroners.
The potential liability of a coroner for costs is on a statutory basis.
In this area, Brooke LJ had already left his mark in R v Coroner for Lincolnshire Ex p Hay H died in prison from a diabetic condition just three days after being admitted. There was evidence that a glucose drink given to him contributed to his death. The coroner refused to disclose a witness list to the H’s family’s legal team, and then during the inquest refused a request by counsel for H’s family for an adjournment to allow two further prisoners who were able to give relevant evidence to be called. At the inquest both the duty health officer and medical officer on call at the time claimed privilege against incrimination, having been interviewed by the police with regard to possible manslaughter allegations. No evidence was admitted as to the answers given in police interviews. At the conclusion of the evidence the coroner advised the jury against bringing in a verdict of accidental death. The jury retuned a verdict of death by natural causes. H’s widow applied for judicial review and orders to quosh the verdict in that inquest, and for an new inquest to be held.
The Divisional Court (Brooke LJ and Forbes J) ordered a new inquest. Counsel for H’s widow (who was legally aided) then applied for costs. On this issue there was a further judgment as to costs given by Brooke LJ alone.
He began by citing the following passage from Jervis on Coroners 11th edition:
“Cases where the coroner loses are far more difficult. The basic rule derived from cases involving magistrates courts and other inferior tribunals, is that if a coroner does not appear at the hearing, and (although he has been found to be in the wrong) he has done nothing calling for strong disapproval, then the court will not make an order against him.”
“If the coroner does appear at the hearing, and loses, then the court has discretion whether to order the coroner to pay the successful applicant’s costs, even though he acted reasonably. But such an order has only rarely been made; usually no order is made unless the coroner’s behaviour called for strong disapproval. One additional factor against making a costs order is where the applicant is legally aided and therefore it would only be the public paying the public.”
“In my judgment, that situation [with regard to magistrates] is quite different from the situation here when a coroner is carrying out his important statutory duty to conduct an inquest. In this context the relevant principle appears to be that if a coroner not only files an affidavit but also appears and contests the making of an adverse order in an inter partes adversarial mode, then he or she is at risk as to costs. If, on the other hand, the coroner, as is fitting for somebody holding judicial office, swears an affidavit to assist the court and then appears in court, more in the role of an amicus than as a contesting party, then the court is likely to follow the normal rule set out in Jervis and make no order as to costs provided that it does not express strong disapproval of his or her conduct. … It goes without saying that the Court is greatly assisted by coroners who depose to what took place before them and then appear in Court to assist the Court in an amicus role.”
In the instant case the court had been assisted by a “very helpful” affidavit from the Secretary of the Coroners’ Society “which would not have been possible if the coroner had not been present and represented. For those reasons, he said, for no order for costs was made against coroner.
In R (Touche) v Inner London North Coroner there was a different outcome. The applicant’s wife died in childbirth. She died of a cerebral haemorrhage the result of severe hypertension, possibly secondary to eclampsia. There was evidence to suggest that had her blood pressure been monitored in the immediate postoperative phase her death would probably have been avoided.
The applicant investigated the circumstances of his late wife’s death and asked the coroner for an inquest. The coroner refused. The crucial issue in the proceedings was whether the deceased death was natural or unnatural. In the ordinary way, of course, it is for the coroner to decide whether there is reasonable cause to suspect that a particular death is unnatural, and his decision will not be challengeable unless it is Wednesbury unreasonable or involves a self-misdirection in law.
The Divisional Court granted the application and ordered the coroner to pay the applicant’s costs. The Court of Appeal confirmed that decision. Since the coroner unsuccessfully contested the judicial review it was correct to order him to pay the costs of the application. 1221B-1222C. Simon Brown LJ giving the leading judgment said he disagreed with the approach taken in ex p Hay for these reasons:
- He could find no basis in earlier authority to support the distinction Brooke LJ had made
- It was difficult to apply the distinction in practice because both roles postulated that he [the coroner] would be resisting the challenge and arguing the relevant law.
- Amici Curiae played different roles according to the requirements of their assistance.
- It was not easy to determine what role the coroner had played in the instant case, particularly because he appealed after the first instance decision, and an amicus has no power or authority to appeal.
- If the coroner had won below, he would without doubt have asked for and awarded his costs.
- 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.
- It was always open to a court to direct that an amicus should appear if required.
Thus in Davies Brooke LJ had deal with “adverse” comments by the Court of Appeal on his previous statement of practice set out in Ex p Hay.
First, he gently side lined Touche’s case, which was said to be on narrow special facts (it raised “a very difficult issue of coronial law.”). But in any event, it was necessary to revisit the matter in the light of new matters. He the said the matter needed to be analysed afresh in any event in the light of new developments, namely:
The codifying of the costs rules in the CPR;
- 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;
- 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;
- The fact that a coroner now has a clear statutory indemnity in respect of any adverse order for costs;
- 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;
- The effect of Article 2 of the European Court of Human Rights. .
- 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;
- 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;
- 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;
- There were 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 had 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.
At paragraph 48 he continued:
“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.”
The result in was that it would have been unjust to award the applicant costs in respect of the hearing at first instance. The appellant had lost but the case had been rightly decided on the law as it stood at that time. However, as the law changed it would have been open to the coroner to choose not to appear (in which case the court would have almost certainly appointed an advocate to act as amicus). Instead the coroner chose to fight the appeal, and the consequence was that he was ordered to pay the costs.
As mentioned above, it is not in every case that a successful litigant can expect to recover his costs against anyone. In my opinion, Brooke LJ’s analysis in Hay was clearly right. In the case of a tribunal who gets it wrong, the clear practice has been – and ought to be – that the tribunal itself does not pay a price in costs on appeal unless it has acted in some deliberate or reckless disregard of principle, or some other serious impropriety has taken place, the tribunal takes up arms and becomes actively involved in opposing the appeal. Indeed, that is only proper. If a tribunal does its best and makes an error of law, why should it be penalised? What lawyer can say that they have not in the course of a career?
In the Paddico case itself, the position was particularly onerous for the Council for two reasons. One was that local authorities like the Council were saddled with the task of ruling on such applications by Parliament. They did not choose to do the job. The authority could have been open to criticism because it adopted a flawed procedure. Instead of appointing an independent expert the Council dealt with the matter via a planning sub committee. But there is no rule of law that a local authority has to appoint an independent advisor to convene and inquiry, and this practice has cost local authorities untold amounts in recent years. Parliament thus imposed a quasi judicial process on local authorities without any particular guidance about how it was to go about the job, or resources with which to carry it on.
In the event, Paddico’s application for costs from the Council failed. Vos J refused to get involved in detailed discussion of the case law or correctness of Hay or Davies –although to my thinking they were powerfully persuasive authorities. His decision was pragmatic. He simple stated that the issue of who should pay the costs of the action was now governed by CPR 44.2. One simply had to apply those rules, and carefully taking each factor into account in his judgment it was not just that the Council should be fixed with liability for the costs. I was rather disappointed with the result only in the sense that I was hoping for a rather more wide ranging statement of principle which would set the law reports on fire. However, on reflection I can see that it was a shrewd way of dealing with the matter. I have no doubt that the judge would have had in mind the general principle of Hay and Davies, but by tying the reasoning so tightly to his discretion under CPR 44 he effectively rendered any appeal against his order impossible – a neat solution.
  EWHC 1606 (ch)
 There was a slightly complicated procedural history which involved an immediate challenge to the decision which was subsequently automatically stayed under the CPR
 It was subsequently overturned in the Court of Appeal on discretionary grounds – delay
 See the observations of Lord Bridge in Steel Ford & Newton v CPS  1 AC 22 at 39-40, and adopted by Chadwick J in Providence Capitol Trustee Ltd v Ayres  4 All ER 760 at 763 b
  EWCA Civ 2007
  EWCA Civ 1739
 Citation above
 Longmore LJ and Sir Martin Nourse
 Paragraph 4 of the judgment
 R v Willesden Justices, Ex p Utley  1 KB 397; R v Coventry Rent Tribunal, Ex p Whitcombe (unreported) 1st December 1948; see also  R v Kingston upon Hull Rent Review Tribunal, Ex p Black  1 All ER 260, although not a justices case; and R v Camborne Justices, Ex p Pearce  1 QB 41. These are dealt with generally in Davies at paragraphs 8 – 12
  1 WLR 809
  1 WLR 585, cited and followed in R v Liverpool Justices, ex p Farmery (1988) 153 JP 257, 261 per May LJ
  1 WLR 1684; Rose LJ and Smith J
 Per Rose LJ at 1691 H, following Lord Bridge in Steele Ford & Newton and others v CPS (above)
 Ex p Davies, Ex p Roberts and Ex p Farmery applied: see page 1692 at A- E. See also Providence Capitol Trustees v Ayres (above) at 763 where that statement of principle was adopted
 Ex p Pearce  1 QB 41 followed
 Ex p Davies followed
 Per Rose LJ at page 1692 F-G
  1 All ER 691.
 See for example S (A Minor) v Special Educational Needs Tribunal  1 WLR 1627, Latham J, approved in Davies at paragraph 23
 Davies at 2747 G-H
  4 All ER 760
 See University of Nottingham v Eyett (No. 2)  1 WLR 594. As the judge observed, giving a considerable headache for the costs judge
 See section 13(2) of the Coroners Act 1988. However, in practice the coroner has the statutory right to an indemnity from “the relevant council”: see section 27A
 ] Lloyd’s Rep Med
 Page 348
 R v HM Coroner for the Eastern District of West Yorkshire, ex p Smith (1985) 149 JP 97, R v HM Coroner for Kent, ex p Johnson  6 Med LR 116, R v HM Coroner for Wiltshire, ex p Clegg (1997) JP 521
  EWCA Civ 383
 Section 81 of the Coroners Act 1988 requires an inquest where “there is reasonable cause to suspect that the deceased…has died…an unnatural death”.
 Touche paragraph 16
 See Davies at 2752 paragraph 41
 At paragraph 47
 Ibid [check]
 Per Lord Bridge in Holden & Co v Crown Prosecution Service (No.2) (above)