Mowlem Plc, R (on the application of) v District of Avon HM Assistant Deputy Coroner & Anor

On judicial review of an inquisition, the court has an inherent power, reflected in CPR 1998, r 54.19(3), to substitute words for words unlawfully included. The power must be exercised with the greatest caution. The court must not usurp the jury’s fact-finding role by choosing between competing accounts of how the death occurred. Substitution may nevertheless be appropriate where the replacement wording is one to which the decision-maker could not object as failing to reflect any reasonable determination available on the evidence. A coroner must not express opinions at an inquest on matters outside those specified by Coroners Rules 1984, r 36(1). Unlawful comments may be declared of no effect, particularly where the affected party had no opportunity to make submissions.

Mowlem Plc sought judicial review of parts of an inquisition following the death of an employee at work. The inquisition recorded that he had fallen from a ladder, although the circumstances of the accident were disputed and the coroner accepted that those words had been unlawfully included before the jury considered its verdict.

The claimant also challenged comments made by the coroner after the verdict concerning workplace safety systems and accident investigations. The issues were whether the court should substitute wording in the inquisition or order a fresh inquest, and whether the coroner’s comments contravened the Coroners Rules 1984.

1. Substitution of wording. The court accepted that judicial review has a residual power to substitute words in an inquisition. The power derives from the inherent jurisdiction of the superior courts and is reflected in CPR 1998, r 54.19(3).
2. The court rejected the coroner’s submission that it should determine, on the balance of probabilities and without hearing the evidence, how the accident occurred. That would improperly usurp the jury’s role. The court was also not satisfied that either proposed formulation precisely recorded the jury’s actual determination.
3. The power nevertheless extends beyond cases where the court is satisfied that the replacement words exactly state the decision-maker’s determination. With the greatest caution, substitution may be made where the words are ones to which the decision-maker could not object as unreflective of any reasonable determination available on the evidence. The claimant’s wording, “he stumbled, tripped and/or fell at work”, met that test because it covered all rival hypotheses which the jury could reasonably have favoured. A fresh inquest was not required, particularly given the evidential difficulty and the widow’s opposition to one.
4. Coroner’s comments. The coroner accepted that his comments expressed opinions on matters outside those specified by Coroners Rules 1984, r 36(1), contrary to rule 36(2). The proper statutory route where preventive action may be required is a written report under rule 43. The comments were declared unlawful and of no effect. Their impropriety was aggravated because Mowlem had no opportunity to make submissions before they were made.
5. The coroner was ordered to pay 100 per cent of Mowlem’s costs, subject to detailed assessment. The widow’s application for costs was refused.

Not stated in the judgment.