Davies (No 2), R (on the application of) v HM Deputy Coroner for Birmingham

Factual and Procedural Background

This opinion concerns the issue of costs in judicial review proceedings involving a deputy coroner and a claimant who is legally aided. The claimant sought an order that the deputy coroner pay her costs of the hearing before the lower court and the appeal to the Court of Appeal. The deputy coroner opposed an order for costs, particularly in relation to the appeal. The court took time to consider important issues regarding the liability of inferior courts or tribunals for costs when participating in public law proceedings before making a costs order.

Legal Issues Presented

1. What is the established practice of the courts regarding costs orders against an inferior court or tribunal which does not participate in the proceedings?
2. What is the established practice when an inferior court or tribunal actively resists an application and becomes a party to the litigation?
3. Is there an alternative practice when an inferior court or tribunal appears only to assist the court neutrally on jurisdictional or procedural matters without becoming a party to the litigation?
4. Are there contemporary considerations, including the Civil Procedure Rules, that should lead courts to exercise their discretion on costs differently from past practice?

Arguments of the Parties

Appellant's Arguments

• The claimant, being legally aided, argued that the deputy coroner should pay her costs of both the initial hearing and the appeal.
• The claimant relied on the recent Court of Appeal decision in R (Touche) v Inner North London Coroner [2001] EWCA Civ 383 as authority for awarding costs against the coroner.

Appellee's Arguments

• The deputy coroner contended that the order for costs below should stand and that no order for costs should be made in respect of the appeal.
• The deputy coroner’s counsel submitted that coroners, like other public judicial bodies, should not be routinely ordered to pay costs absent misconduct or improper behavior.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Touche) v Inner North London Coroner [2001] EWCA Civ 383	Costs orders against coroners who participate actively in litigation; rejection of a strict distinction between coroner as amicus curiae and contesting party.	Binding authority; court affirmed that a coroner appearing and losing may be ordered to pay costs; disapproved earlier distinctions made in ex p Hay.
R (Hay) v Coroner for Lincoln [2000] Lloyd's Med LR 264	Distinction between coroner’s roles in proceedings as amicus curiae or contesting party for costs liability.	Disapproved by Court of Appeal in Touche but reviewed in this judgment to support the distinction in practice.
R v Willesden Justices ex p Utley [1948] 1 KB 397	Costs against justices only in cases of gross impropriety; bona fide mistakes do not attract costs orders.	Illustrated the established practice of reluctance to award costs against inferior courts absent flagrant misconduct.
R v Kingston-upon-Hull Rent Tribunal ex p Black [1949] 1 All ER 260	Costs awarded against tribunal that actively appeared and contested proceedings; no costs if only affidavit filed.	Support for principle that active participation exposes inferior tribunals to costs liability.
R v Llanidloes Licensing Justices ex p Davies [1957] 1 WLR 809	Justices who appear and contest proceedings make themselves parties to the lis and risk costs orders.	Confirmed that justices exercising statutory rights to file affidavits avoid costs risk; active contestation exposes to costs.
R v Newcastle-under-Lyme Justices ex p Massey [1994] 1 WLR 1684	Costs orders against justices who unreasonably refuse consent orders in uncontested judicial review proceedings.	Introduced procedural rule encouraging justices to avoid unnecessary hearings and costs risk.
R v Paddington South Rent Tribunal ex p Millard [1955] 1 All ER 691	Costs against tribunals only if they act improperly.	Reinforced the principle that mere mistakes do not attract costs orders against tribunals.
R v West Yorkshire Coroner ex p Smith [1985] 149 JP 97	Costs orders against public judicial bodies are rare absent misconduct even if they appear to resist applications.	Supported the established practice of reluctance to award costs against coroners without misconduct.
R v Hammersmith Coroner ex p Gray (1986) 151 JPR 209	Costs orders against coroners not made despite misdirection; public funding concerns acknowledged.	The court declined to order costs against coroner despite errors; highlighted the unsatisfactory funding position for successful applicants.
R v Coroner for Southern District of Greater London 159 JPR 45	Costs ordered against coroner who behaved improperly and actively defended decision.	Confirmed costs liability where coroner acts improperly and contests proceedings.
R v Coroner for Kent (Maidstone District) ex p Johnstone [1995] 6 Med LR 116	Costs ordered against coroner who sought to defeat challenge and was not acting neutrally.	Applied principles supporting costs liability for coroners actively contesting proceedings.
R v Coroner for Wiltshire ex p Clegg 161 JPR 521	Costs ordered against coroner who filed affidavit but did not participate otherwise.	Considered an outlier; did not follow established practice; court expressed disapproval of this approach.
Holden & Co v Crown Prosecution Service (No 2) [1994] 1 AC 22	Recognition of difficulties in recovering costs from public bodies; highlighted lack of power to order costs from public funds.	Supported concerns about costs recovery in public law challenges; influenced reasoning on costs discretion.
Seifert v Pensions Ombudsman [1997] 4 All ER 947	Limited circumstances for ordering costs against inferior tribunals; ombudsman not liable absent specific grounds.	Referenced in relation to costs risk when inferior tribunal participates in appeal.
Providence Capitol Trustees Ltd v Ayres [1996] 4 All ER 760	Clarification of costs liability when public tribunal participates in appeal; costs limited to those increased by appearance.	Referenced as possible middle ground for costs orders against public tribunals.
University of Nottingham v Eyett (No 2) [1999] 1 WLR 594	Costs orders limited to extent increased by tribunal’s participation.	Supports nuanced approach to costs liability of public tribunals.
R (Khan) v Secretary of State for Health [2003] EWCA Civ 1129	Article 2 ECHR requires effective state inquiry into death; underpins fairness in costs orders in coronial cases.	Emphasized state’s obligation and fairness considerations relevant to costs in coronial judicial review.

Court's Reasoning and Analysis

The court undertook a detailed historical and doctrinal review of the principles governing costs orders against inferior courts and tribunals, focusing on justices, tribunals, and coroners. It identified a longstanding practice of reluctance to award costs against such bodies unless they engaged actively in litigation or behaved improperly in a flagrant manner.

The court acknowledged that justices have a statutory right under the Review of Justices' Decisions Act 1872 to file affidavits to avoid costs risk, and that active participation in proceedings exposes them to costs liability. Similar principles apply to tribunals and coroners, with an important distinction recognized between an inferior court or tribunal appearing neutrally to assist the court and appearing as a party contesting the application.

The court analyzed the Court of Appeal’s decision in R (Touche) v Inner North London Coroner, which disapproved the earlier distinction between a coroner as contesting party and as amicus curiae, emphasizing that the coroner’s active participation and losing the appeal justifies an order for costs. However, the court here revisited the earlier practice and reaffirmed the practical and principled basis for distinguishing between neutral assistance and active contestation.

Contemporary factors influencing the exercise of discretion on costs were examined, including the codification of costs rules in the Civil Procedure Rules, government reluctance to allow costs to be paid from central funds, statutory indemnities for coroners, increased public law challenges by privately funded applicants, and human rights obligations under Article 2 ECHR requiring effective investigations into deaths.

The court concluded that these factors may justify departing from earlier practice to ensure fairness for applicants who bear the costs of successful challenges when no other public funding source is available, but recognized the unsatisfactory nature of this outcome, which stems from Parliament’s refusal to permit costs to be paid from central funds.

Applying these principles to the present case, the court held that the deputy coroner should not pay costs of the lower court hearing because he was correct according to the law at that time and the claimant was legally aided. However, the deputy coroner should pay the costs of the appeal because he actively appeared, argued, and lost, and the law had evolved by the time of the appeal.

Holding and Implications

The court held that the deputy coroner:

• Should not pay the claimant’s costs of the hearing before the lower court, as the law was correctly applied at that stage and the claimant was legally aided.
• Should pay the claimant’s costs of the appeal to the Court of Appeal, as he actively participated and lost on a legal position that had evolved.

The implications of this decision are that inferior courts or tribunals that actively contest proceedings risk being ordered to pay costs, while those that participate neutrally generally do not. The judgment clarifies the application of costs principles in the context of coroners and public law challenges, balancing fairness to applicants with the practicalities of public funding and judicial participation. No new precedent was established beyond authoritative clarification and reaffirmation of existing principles in light of contemporary procedural and funding realities.