Adath Yisroel Burial Society & Anor, R (on the application of) v HM Senior Coroner for Inner North London

Where a coroner is challenged in judicial review, costs do not ordinarily follow the event merely because the coroner loses. A coroner who assists the court neutrally will generally avoid an adverse costs order. Neutrality is judged by substance, not by the form of the documents filed. The critical question is whether the coroner moves beyond explaining the decision and begins arguing for its correctness. A coroner’s failure to reconsider an unlawful policy after a reasoned intervention by the Chief Coroner is an important fairness consideration when deciding where costs should fall. Once the coroner actively defends the policy, or otherwise ceases to be neutral, the court may order costs from that point. The order remains discretionary and depends on the circumstances of the case.

The claimants sought judicial review of a policy adopted by the HM Senior Coroner for Inner North London concerning the order in which decisions would be taken about deaths, including the release of bodies. The policy was held unlawful in the main judgment handed down on 27 April 2018.

This judgment concerned the claimants’ application for their costs. The court considered the general discretion under CPR 44.2 and the principles governing costs against coroners, particularly the distinction between a coroner acting neutrally and one actively defending the decision under challenge. The central issues were whether the policy was judicial or administrative in nature, whether the coroner had acted unreasonably, and when her conduct ceased to be neutral.

The claimants succeeded in part. Singh LJ and Whipple J ordered the defendant, indemnified by Camden, to pay the claimants’ reasonable costs from 8 March 2018, the date on which she filed her Addendum Detailed Grounds. The costs were subject to detailed assessment if not agreed, and £68,000 was ordered to be paid on account within 21 days.

1. The court had a discretion under CPR 44.2. Although the general rule is that costs follow the event, special principles apply to judicial officers such as coroners. The court applied R (Davies) v Birmingham Deputy Coroner, [2004] EWCA Civ 207; [2004] 1 WLR 2739.
2. The challenged policy was judicial in nature. It directed the coroner and her staff about the order in which decisions would be taken concerning deaths and release of bodies. The statutory and common-law functions governed by the policy were judicial acts which could not be delegated to officials. Davies therefore applied.
3. The first limb of Davies was inapposite. The defendant had not behaved flagrantly improperly and no consent order had been offered for signature. Losing the case was insufficient, by itself, to justify an adverse costs order.
4. Failure to reconsider the policy after the Chief Coroner had filed detailed grounds explaining why it was unlawful was an important consideration under the fourth limb of Davies. The court stopped short of finding that the defendant had acted unreasonably, and lacked sufficient information to decide that question.
5. Neutrality is a matter of substance, not form. The defendant’s original correspondence and Detailed Grounds remained neutral because they explained the facts, process and policy. Her Addendum, however, disputed the Chief Coroner’s legal criticisms and sought to justify the policy. Applying the approach in R (Gudanaviciene) v Immigration and Asylum First Tier Tribunal, [2017] EWCA Civ 352; [2017] Inquest LR 154, the court held that she had crossed the line into active participation. No costs order was made before 8 March 2018.