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Jade Quirke
Jade Quirke
Family Solicitor
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Keeping it in the family
Date:12 NOV 2019

Vijay Ganapathy & Claire Spearpoint discuss the role family members can play in legal proceedings involving their relatives

Recent judgments have highlighted some of the challenges faced by families who advance or take part in legal proceedings arising from the loss of a family member. This is particularly so in inquests where the procedural complexity and having to hear upsetting details about their relative's death in court, makes the whole process incredibly strenuous for families.

In cases where there is some suspicion of negligence or other breach, many families seek legal representation to guide them through this process, help them find answers about the cause of death and, where possible, prevent the same thing happening again. However, obtaining funding can be difficult. Some may be eligible for legal aid, but this can only be obtained in a small proportion of cases and even where funding is granted, its scope is limited. Crowdfunding is another option, but not everyone can rely on public generosity to fund their claims as only certain types of cases are able to attract the necessary widespread interest.

Costs

Thankfully, Roach v Home OfficeMatthews v Home Office [2009] EWHC 312 (QB), [2009] All ER (D) 164 (Mar) confirms that where a civil claim is successfully advanced following an inquest, costs incurred by family representatives 'incidental to the claim' are recoverable. However, as this ruling predates the Jackson reforms, there has been some uncertainty concerning its scope.

This issue was recently addressed in Fullick and others v Metropolitan Police Commissioner [2019] EWHC 1941 (QB). Following the death of a woman who had fallen ill after having voluntarily attended a police station to act as a witness, the deceased's two daughters and her sister, 'F', instructed solicitors to represent them at the inquest.

At this inquest's conclusion, a narrative verdict ruled the death was due to methadone and alcohol intoxication, as well as defective police procedures, training and policies. Consequently, the defendant, 'P', settled F's civil claim for just over £18,000, before serving a letter of claim.

F sought costs in the region of £122,000 which included the cost of attendance at two pre-inquest reviews (PIRs), the inquest hearing, as well as document perusal time. At detailed assessment, the deputy costs master ordered P to pay just over £88,000.

P appealed, arguing F's costs were disproportionate, given the sum of F's settlement and because agreement was reached very early in civil proceedings.

Evidence

At appeal, Mr Justice Slade considered the evidence regarding the cause of death, police actions and procedures given during the inquest as well as the verdict were all relevant to the civil claim. The same was true of the PIRs, where F was able to 'engage' in issues such as causation expert evidence and were able to put questions to the pathologist.

It was noted F's claim was not just about the money. The verdict led to an agreement by P to revise its policies and training in order to prevent future similar incidents. The fact this matter settled before sending a letter of claim did not carry much weight. As was the case in Roach, P could have accepted liability before the inquest which would have minimised their costs exposure.

Slade J therefore ruled the deputy master had not erred in finding these costs proportionate. However, the broad-brush manner with which the deputy master had approached the question of time spent on document disclosure at inquest was criticised. After finding he should have carried out a detailed analysis of the work undertaken to determine what parts related to the civil claim, this part of the bill was remitted for re-assessment.

 

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Proportionality

This decision confirms that assessing proportionality for inquest costs does not solely involve comparing the level of damages against total costs claimed. Also, while Slade J emphasised the need for costs incurred to be relevant to the civil claim, it is clear that a substantial proportion of inquest costs would be recoverable in many cases which should make it easier for families to find legal representation in such cases.

Where a civil claim is advanced after an inquest, another potential pitfall families face is in respect of limitation. In cases where the deceased suffered a compensatable injury prior to death, there have been cases where the courts have ruled the primary limitation period had expired before the death.

A widow, 'S', who sought to advance a claim on behalf of her late husband, 'G', encountered the same issue in HMG3 Ltd & Anor v Dunn [2019] EWHC 882 (QB), [2019] All ER (D) 75 (Apr).

G had developed asbestosis allegedly caused by asbestos exposure during his employment with the defendant, 'H'. At first instance, the judge found G knew he had a compensatable injury in October 2008. This meant that, pursuant to s 14 of the Limitation Act 1980 (LA 1980), the primary limitation period expired in October 2011.

G did not seek legal advice then despite being advised to do so, as he had other medical problems affecting him so did not give this much attention. His health subsequently deteriorated and he sadly died in March 2012. An inquest concluded he had died of an industrial disease. Proceedings were issued within three years of the date of death and as the court found the primary limitation period had expired, it was necessary to consider whether it should exercise its discretion under s 33 of LA 1980. The judge ruled in S's favour as the reasons for the delay were considered reasonable and H would suffer no prejudice.

Appeal

H appealed arguing, inter alia, that the trial judge had only considered the reasons for the delay in the period before G's death and not the delay after. Lady Justice Yip found that while the trial judge did not refer to the latter period, it was clear he was looking at this in 'human terms' which enabled him to conclude the reasons for G and S's delay were understandable.

H further claimed it suffered prejudice because they were unable to cross examine or put questions to G before he died and Department for Work and Pensions records had been destroyed. Yip J considered however that it was unlikely H could have obtained any further evidence from these sources. Details of other employers were available from the HMRC and his chest physician prepared a letter detailing his employment history.

H also argued S had to prove 'additional prejudice' rather than just being deprived of the claim. Yip J disagreed, finding no basis for this in the authorities. In fact, she considered it difficult for any claimant to prove further prejudice aside from being deprived of the opportunity to claim.

Yip J confirmed that judges have a 'broad and unfettered' discretion under s 33 and found, for the reasons above, no grounds for interfering with the trial judge's decision.

While each case will turn on its facts, this will be a welcome decision for claimants. It is clear the claimant bears the lighter burden of providing prejudice and judges will look at the reasons for delay in 'human terms' when deciding whether to exercise its discretion.

Accident

Finally, Brownlie v Four Seasons Holdings & FS Cairo LLC [2019] EWHC 2533 (QB) is another fatal accident case. Following a car accident in Egypt that occurred during a trip organised through a Four Seasons hotel, Sir Ian Brownlie QC, a leading international lawyer and his daughter, Rebecca, were killed and his wife (the claimant, 'B') and grandchildren were injured.

The claim was previously heard in the Supreme Court as B had issued proceedings in both contract and tort against Four Seasons Holdings. However, it transpired this was not the correct defendant. Instead, it should have been FS Cairo LLC (FSC) as they managed the hotel when the accident occurred. The matter was therefore remitted to the High Court to consider B's application to substitute/correct the name of the defendant and for permission to serve FSC in Egypt.

At the time of B's application, the primary limitation period had expired and Mr Justice Nicol noted there is not normally provision to add a party to an action once this had occurred. It was agreed that as both the Rome I and Rome II Regulations applied, the rules of contract, tort and limitation were governed by Egyptian law. B argued the Egyptian civil code applied, whereas FSC stated it should be the Egyptian commercial code. Nicol J found it unnecessary to consider which code applied for B's application hearing, as the central issue was whether B had a reasonably arguable case. As he felt this threshold was met, he allowed FSC to be added as a party.

On the question of service out of the jurisdiction, Nicol J considered the following:

i.     does such service meet the 'jurisdictional gateway' (this determines whether a defendant can be served in a non-member state);

ii.     whether B had a reasonable prospect of success; and

iii.     whether England was the convenient forum for the claim.

Turning to the first of these in respect of B's tort claim, the key question was whether the damage was sustained within this jurisdiction. FSC sought to argue that as B's losses were consequential and indirectly related to the accident in Egypt, she had not satisfied this test; a conservative approach to gateways should be adopted. However, Nicol J held that 'consequential' damage was sufficient to enable her claim to satisfy the gateway.

For the second point, FSC argued B needed to be specific in her pleadings in respect of the Egyptian law she intended to plead. However, B argued she has comparable rights under Egyptian law and relied on Dicey Rule 25(2) for the proposition that as Egyptian law had the same outcome as English law, she did not need to be more specific in her pleadings. Nicol J agreed and found B's claim had a reasonable prospect of success.

Forum

On the issue of forum, both sides put forward a long list of reasons including location of parties/witnesses and documents, translation issues, costs and delays in litigation, and the political stability of Egypt. Ultimately, Nicol J found England was the convenient forum. On the question of costs and delays he noted the present litigation had already taken a substantial amount of time partly due to the 'labyrinthine corporate structure' and the 'ducking and weaving' of the Four Seasons chain of hotels which made it very difficult for B to correctly identify the defendant. Also of pertinence was the fact the previous defendant (Four Seasons Holdings) and FSC appear to share access to legal advice therefore they could not reasonably argue prejudice from being joined to the litigation at a late stage. He also noted the location of documents was of minor importance given the ease they can now be conveyed around the globe.

Comment

It must have been very difficult for B, who lost her husband and daughter, to hear that there was found to be 'ducking and weaving' by the defendant. Unfortunately, this is an issue faced by many claimants advancing cases against defendants who are part of complex corporate structures. While considerable information can be obtained from Companies House or public archives, in many cases the key documents (such as contractual transfer documents) are usually held by the defendants themselves. A pre-action application for disclosure carries its own costs risk and so, in the absence of this information, claimants frequently have to proceed on the basis of what little evidence they have.

This article was first published in New Law Journal, and is reproduced with permission.

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