COSTS AS DAMAGES: SOME OBITER, BUT IMPORTANT, REMARKS

There are some important remarks on legal costs claimed as damages in Shaw -v- Kovac [2015] EWHC 3335(QB). (A case that is considered in more detail on Fatal Accidents Law.

KEY POINTS

  • In a fatal claim the costs of attending the inquest are potentially recoverable as a costs of the action and do not represent a head of damages.
  • The costs of judicial review proceedings, when those costs were ordered to be paid by a relative of the deceased, are not recoverable as costs of the action.

THE CASE

The judge was assessing damages in a case where liability was admitted.  Mr Ewan had died during an operation for transaortic valve implant. There had been a lengthy coroner’s inquest and Mr Ewan’s daughter had issued a judicial review application. That application had failed and she had been ordered to pay costs.

THE COSTS OF ATTENDING THE INQUEST

41. First of all, the costs of the inquest. In the Schedule of Loss dated 24 June 2015 a claim was made for the damages representing the considerable costs incurred in respect of the inquest. It is now accepted by both sides that those costs should not be recoverable as damages in this claim, but might be recoverable as costs incidental to the claim following the decision of Roach v Home Office [2010] QB 256. They will therefore not form part of the order I make and will have to be considered within the cost proceedings if appropriate.

THE COSTS OF THE JUDICIAL REVIEW PROCEEDINGS

With regard to the costs of the judicial review and the Court of Appeal which Mrs Shaw has been ordered to pay, these claims have caused considerable confusion and debate, but have now been abandoned. The confusion arose because Master Roberts apparently allowed the amendments at paragraphs 38 and 40 of the Re-amended Particulars of Claim, but refused related draft amendments to the pleading which had apparently set out for the basis of those claims claimed in 38 and 40. However in reply, having taken instructions, Mr Berkley QC on behalf of the claimant abandoned the claims and I think quite rightly. It seems to me that these claims were doomed to fail. The claimant’s argument was that the disclosure in this action had led to disclosure of documents which had they been available in the judicial review proceedings, either at first instance or on appeal, would have led to a different result in those proceedings with the result that she would not have had an order for costs made against her in those proceedings. There are so many difficulties with such a claim, not least that it seeks to go behind cost orders made by courts of competent jurisdiction in different proceedings, but also the cause of action is not identified and I am not clear what it is at present. It is not easy to see how the claim is that of the estate, the orders having been made against Mrs Shaw personally; the claim does not appear to be properly or substantively pleaded and there is no evidence before me to support it. It seems clear to me that this claim could not have been made out at trial and in my judgment it was rightly abandoned by Mr Berkley QC

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