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

An inferior court or tribunal which actively contests public law proceedings makes itself a party to the lis. It will ordinarily be subject to the usual costs consequences if it succeeds or fails.

A body which confines its participation to neutral assistance on jurisdiction, procedure or specialist law has historically been treated differently. It neither receives nor bears costs merely because it assists the court. The court retains a broad discretion, however, and modern considerations may justify compensating an unfunded successful applicant from public funds where there is no other suitable source.

A coroner who supplies factual material in strict neutrality will not ordinarily face an adverse costs order, absent flagrant impropriety or an unreasonable failure to consent to the appropriate order.

This was a costs judgment following the Court of Appeal's earlier substantive judgment in the claimant's challenge concerning an inquest. The court had heard argument on costs after handing down that judgment.

Moses J in the Administrative Court had decided for the deputy coroner under the law as it then stood. The legally aided claimant sought her costs both below and on appeal. The deputy coroner resisted any alteration of the first-instance costs order and sought no order as to the appeal costs.

The central issue was when an inferior judicial body that participates in public law proceedings should bear, or recover, costs.

1. Order. The deputy coroner was not required to pay the claimant's costs before Moses J, but was ordered to pay her costs of the appeal. Longmore LJ and Sir Martin Nourse agreed.

2. Brooke V-P held that the historic practice drew a real distinction between an inferior court or tribunal which did not participate, one which actively contested the application, and one which assisted neutrally. A non-participating body was ordinarily protected from costs unless its conduct was flagrantly improper or it unreasonably failed to consent to an order that would avoid a hearing.

3. Where the body actively argued for the correctness of its challenged decision, it became a party to the lis. In the ordinary course, costs then followed the event. By contrast, a body which appeared solely to assist on jurisdiction, procedure or specialist law was historically neutral and was not ordinarily entitled to, or liable for, costs.

4. The court explained that the latter practice must now be considered in light of R (Touche) v Inner North London Coroner, [2001] EWCA Civ 383, the Civil Procedure Rules, the statutory indemnity available to coroners, the absence of a central-funds jurisdiction, and the state's investigatory obligations under Article 2. Those matters could justify an award from public funds to a successful, privately funded applicant even where the judicial body had remained neutral.

5. On the facts, it would be unjust to disturb the first-instance position because Moses J had correctly applied the law then understood and the claimant was legally aided. On the appeal, however, the deputy coroner appeared, argued the case, and lost. The ordinary costs consequence therefore applied.

• Court of Appeal (Civil Division): In this costs judgment, Davies (No 2), R (on the application of) v HM Deputy Coroner for Birmingham, [2004] EWCA Civ 207 , the court left the first-instance costs position undisturbed and awarded the claimant her appeal costs.
• Administrative Court: Moses J had found for the deputy coroner. No citation for that judgment is stated in the judgment.