B R I E F I N G - 1 Chancery Lane - Barrister Chambers

BRIEFINGINQUESTS

November 2020

LAURA JOHNSONHead of the 1 Chancery Lane PersonalInjury Group

INTRODUCTION

www.1chancerylane.com

There have been a number of recent developments of interest to those whopractice in the coroners’ courts. As a result the 1 Chancery Lane PersonalInjury and Clinical Negligence groups have joined forces to provide anupdate for your assistance. Henk Soede considers the recent Supreme Court decision of R (on theapplication of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [2020]UKSC 46, which is required reading for all inquest practitioners, altering theburden of proof to be applied to the short form conclusions of suicide andunlawful killing. David Thomson discusses the Chief Coroner’s Revised Guidance No 5 onReports to Prevent Future Deaths, both identifying the changes and alsoproviding a wide ranging explanation of the guidance in general. Dominique Smith identifies the key points in the interesting costs decisionof Greater Manchester Fire and Rescue Service v Veevers [2020] EWHC 2550(Comm), which provides some welcome clarification about the recoverabilityof the costs of an inquest in subsequent civil proceedings. Members of 1 Chancery Lane regularly act for both bereaved families andother interested persons and organisations in inquest proceedings.Members of Chambers are also currently instructed in the ManchesterArena Inquiry and the Grenfell Inquiry. We offer a wealth of experience inthis area and are happy to assist with any of your queries or needs.

CONTRIBUTORS

David Thomson

Dominique Smith

Henk Soede

https://www.1chancerylane.com/

http://www.1chancerylane.com/


Inquests BriefingNovember 2020

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R (ON THE APPLICATION OFMAUGHAN) V HER MAJESTY’SSENIOR CORONER FOROXFORDSHIRE [2020] UKSC 46

be deconstructed as follows.

The legislative uncertainty

The Coroners and Justice Act 2009 is silent aboutwhether the burden of proof in short form conclusionsand narrative conclusions is the same. Similarly, underthe Coroners (Inquests) Rules 2013 (SI 2013/1616) (the“2013 Regulations”), which were made for the purposeof “regulating the practice and procedure at or inconnection with inquests”, there is no regulationaddressing the standard of proof that applied. There is,however, a provision described as “Note (iii)” in theForm for recording the results of an inquest prescribedby the Regulations, which provides as follows:

“The standard of proof required for the short formconclusions of ‘unlawful killing’ and ‘suicide’ is thecriminal standard of proof. For all other short formconclusions and a narrative statement the standardof proof is the civil standard of proof.”

As the standard of proof was a matter of “practice andprocedure”, it was open to the 2013 Regulations (perthe empowering provision at section 45 of the 2009Act) to prescribe the standard of proof. Accordingly,Lady Arden was first required to consider the status ofNote (iii) – was it a statutory statement of the standardof proof or something else entirely?

The status of Note (iii)

Lady Arden started by analysing the public consultationthat precipitated the introduction of the 2013Regulations. The consultation made clear that theMinistry of Justice proposed to retain the standardalready established by case law and had also decidedthat the 2013 Rules could not change the law [26]-[27].The essential point to be deducted from the Ministry ofJustice’s response document was that, there being acommon law rule in place to regulate the standard ofproof for the conclusion of suicide, it would be outsidethe enabling power in section 45 to make a rule tosubstitute for a common law rule which was in place[31]. The words “we cannot take forward a change inthe [case] law through secondary legislation” made that

In Maughan, the Supreme Court was asked to considerthe standard of proof, or degree of conclusivity,required when answering the question of whether thedeceased committed suicide. The Supreme Court held(by a 3:2 majority) that for all forms of conclusions at aninquest the standard of proof is the balance ofprobabilities. As practitioners in the field will know, thismarks a significant change not only in cases wheresuicide is in issue, but also unlawful killing.

Factual backgroundThe appeal arose out of the death on 11 July 2016 ofthe appellant’s brother, James Maughan, at HMPBullingdon. At the inquest the coroner decided that thejury could not safely reach a short form conclusion ofsuicide to the criminal standard of proof. However, thecoroner also considered that the jury should be able tomake a narrative statement of the circumstances of MrMaughan’s death applying the civil standard of proof.The jury considered that, on the balance ofprobabilities, Mr Maughan intended fatally to hanghimself and that his death could not have been avoidedby increased vigilance. Thus, whilst there was no shortform conclusion of suicide, the narrative findingsshowed that the two elements of suicide (i.e., (1) thatthe deceased took his own life and (2) that he intendedto kill himself) had been made out.

The Supreme Court was tasked with addressing thelogical difficulty that arose in situations such as thiswhere the narrative findings were suicide but there wasno short form conclusion of suicide. The key issue,which was the source of that difficulty, was whetherthe standard of proof for those conclusions should beuniform.

The Majority ViewLady Arden (with whom Lord Wilson agreed) gave thelead judgment of the majority, and Lord Carnwath gavea brief concurring judgment. Lady Arden’s analysis can

HENK SOEDE


PROFESSIONAL NEGLIGENCE



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the standard of proof [56], Lady Arden went on toanalyse whether the standard of proof for allconclusions should be the civil standard.

The key points were four-fold:

First, inquests were civil proceedings and there was nocogent reason for disapplying the general rule that thestandard of proof should be the balance ofprobabilities. Earlier cases in which the standard ofproof for suicide was deemed to be the criminalstandard seemed to be based on a) the links betweencoronial proceedings and criminal proceedings; b) theserious consequences of suicide; and c) the prevailingsocial norms attaching stigma to suicide [70]. Not onlywere those cases not binding on the Supreme court,but on Lady Arden’s analysis the factors relied upon didnot justify a departure from the general rule in civilproceedings. Secondly, applying the criminal standard may lead tosuicides being under-recorded and to lessons not beinglearnt. It was clearly in the public interest for the civilstandard to apply [74].

Thirdly, historically suicide was a crime, but it ceased tobe so in 1961. The role of inquests has also changed –inquests are concerned today not with criminal justicebut with the investigation of deaths [81].

Finally, other commonwealth jurisdictions also appliedthe civil standard of proof to suicide conclusions ininquests. This supported the position.

Unlawful killing

Lady Arden concluded that the civil standard of proofalso applies to determination of unlawful killing. Theessential reasoning was that “a common standardapplying to both unlawful killing and suicide is moreconsistent with principle and removes an inherentinconsistency in the determinations made at aninquest” [96].

The Minority ViewLord Kerr (with whom Lord Reed agreed) gave the leadjudgment of the minority.

clear. Lady Arden considered this exchange to be avaluable aid to the interpretation of Note (iii) and theidentification of its status [31].

Lady Arden then addressed the line of authority arisingfrom Attorney General v Lamplugh [1878] 3 Ex D 214and culminating in Hunt v RM Douglas (Roofing) Ltd[1990] 1 AC 398. The general principle arrived at inthose cases was that a schedule to an Act of Parliamentor a footnote in such an Act forms part of that Act andmust therefore be considered as such. In theory, thesame would apply to Note (iii). However, Lady Ardenconsidered that unlike in those cases, there was nodebate or notice about the potential effects of Note(iii), which was especially peculiar given it would usurpthe common law position. Given the absence of anynotice about the change that Note (iii) wouldpotentially initiate, Lady Arden considered that Note(iii) should be interpreted as having an effect thataccords with the (current) common law position [42].Lady Arden concluded by stating that this conclusionshould not be read as departing from the “strongpresumption that every provision of an enactment haslegislative force”. The interpretation was justified solelydue to the unusual background to Note (iii).

Lady Arden also found that an intention to codify a newstatutory rule regarding the standard of proof was notborne out by the overall structure of the 2013Regulations – there was, quite simply, no provision tothat effect in the body of the Regulations themselves[45]. Had such a change been intended, it should havebeen brought to the attention of parliament and therewas no indication that this was done [46]. Anotherimportant point was that Note (iii) used the presenttense, not the future tense, and that this suggested that“the provision does not have the effect of ruling outany further change in the common law” [51]. Thecorrect conclusion was that Note (iii) was merelyspeaking as to the state of the law as at the date onwhich the 2013 Regulations came into effect [51].

Should the standard of proof for short form conclusions ofsuicide and narrative conclusions of suicide be the same?

Having held that Note (iii) did not take away the powerof the courts to develop the common law relating to





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The public consultation

Lord Kerr then addressed the public consultation thatLady Arden relied on in support of her interpretation.Lady Arden considered that the response to theconsultation (see [123]) indicated that the Ministry ofJustice had decided that the 2013 Regulations couldnot make a change in the law. Whilst Lord Kerrconsidered that interpretation was correct, he foundthat it was not “outside the power in section 45 tomake rules for coronial proceedings” which replaced acommon law rule. Note (iii) forms part of an enactmentand, similarly to the footnote in Hunt, it must have theeffect of creating binding law. Although the note didnot purport to change the law, it did confirm theexisting law [125]. The plain effect of Note (iii), on LordKerr’s view, was to give statutory expression to theexisting common law rule.

Conclusion on Note (iii)

For all of those reasons, Lord Kerr found that Note (iii)of Form 2 “admits of no interpretation other than thatthe prescribed short form conclusion in inquestsinvolving questions of “unlawful killing” or “suicide” canonly be reached by applying the criminal standard ofproof” [127].

Standard of proof required to establish a criminal offencein civil proceedings

Lord Kerr then went on to address the numerousauthorities in which it had been found that the criminalstandard of proof could apply in quasi-criminal cases(e.g., B v Chief Constable of Avon and SomersetConstabulary [2001] 1 WLR 340). What those casesillustrated was that the characterisation of proceedingsas civil or criminal will not automatically predeterminethe standard of proof to be applied [134]. Accordingly,the fact an inquest was a civil proceeding did not byitself justify the application of a civil burden of proof,particularly in inquests where “the proposition which issought to be established is sufficiently grave or carriessignificant consequences for those whom it will affect”[134]. As for the gravity of suicide, Lord Kerrconsidered there was no doubt that there was a needto distinguish it from other causes of death in terms of

The proper interpretation of Note (iii)

Lord Kerr alighted, firstly, on two preliminary points ofsignificance – 1) there were nine possible short-formconclusions outlined in Note (i) and only unlawful killingand suicide are identified as those to which the criminalstandard applied; 2) the use of the word ‘is’ clearlydenotes that a verdict of suicide or unlawful killing mayonly be reached if the jury or coroner consider it isbeyond reasonable doubt that such a verdict iswarranted [114]. The framing of this note, on LordKerr’s view, was deliberate – there was a cleardistinction between suicide and unlawful killing and theother possible verdicts, which is why the criminalstandard applied. The criminal standard reflected thefact that short-form verdicts of suicide or unlawfulkillings were intended to have clear resonances beyondthose of other short form conclusions [115].

It was also felt that there was no logical incongruity incases where the jury finds suicide is made out in thenarrative statement, but no such finding is made in theshort-form conclusion. At [116]: “The clear distinction(in cases of unlawful killing and suicide) between ashort-form conclusion (verdict) and a narrativestatement (recital of the relevant testimony andtransitory conclusions) should be recognised”. It wasquite right that a different standard of proof applied tothe short-form verdict.

Lord Kerr then took a textual approach to Note (iii).Note (iii) forms part of an enactment and that it istherefore no less binding than a provision contained ina section of the Regulations itself [119]. The fact it wasmerely described as a note was immaterial and LordKerr affirmed the analysis in Hunt on a similar point[119]. It was also considered that use of the word“required” in Note (iii) had a straightforward meaning –it meant that the standard of proof that must beobserved is the criminal standard [120]. As for LadyArden’s view that the intention behind Note (iii) was toreflect the common law position at the time but not toprevent the future development of that law, Lord Kerrdisagreed. It would be extremely unusual if that werethe case, as the meaning of the note would thus berequired to shift and change to reflect futuredevelopments [122].





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The guidance now contains more informationabout how the coroner should approachconsideration of a PFD where the proposedrecipient provides evidence that it has alreadytaken action or has a clear plan of action inplace to reduce the risk of future deaths.

The guidance refers to ‘local trends’ and whatassistance the coroner may take from them.

The guidance clarifies how to challenge aperceived mistake in the PFD.

Further guidance is given on the circumstancesin which a coroner might decide to write aletter rather than producing a PFD.

More examples of PFDs are provided.

are:

These present times certainly throw the matter ofadvice on prevention into clear relief from Novichok toSARS-Cov2 pandemics. This article summarises theguidance in its present form and provides somesuggestions on good practice for interested persons ororganisations.

What is a Report to Prevent Future Deaths?PFDs are important for all to learn from deaths.Coroners have a duty to decide how a person came bytheir death. They also have a statutory duty to reportabout deaths with a view to preventing future deaths.So a PFD may arguably benefit society. That said, mostinterested organisations would generally rather avoid aPFD, because they can highlight concerns, airedsometimes sensationally in public, about how theirservices were operating, which can lead to furtheronerous scrutiny from regulatory organisations such asthe Care Quality Commission (CQC).

Paragraph 7 of Schedule 5 of the Coroners and JusticeAct 2009 Act, and Regulations 28 and 29 of theCoroners (Investigations) Regulations 2013 set out,where an inquest gives rise to concern that futuredeaths will occur, and the investigating coroner is ofthe opinion that action should be taken to reduce therisk of death, then the coroner must make a report to

the level of proof required to establish it [138].

Lord Kerr also cast doubt on Lady Arden’scharacterisation of all inquests as civil proceedings. Itwould not be appropriate “to consider that the civilstandard of proof should apply to all matters which fallto be decided in an inquest. Given the unique nature ofinquests, it is not surprising that some issues should besusceptible to differing standards of proof.” [142].

ConclusionThe decision in Maugham is clearly of huge importanceto inquest practitioners. The standard of proof for allforms of conclusions in inquests will now be the civilstandard of proof. The decision can be commended forresolving the logical difficulty arising from two differentstandards of proof being applied to reach what iseffectively the same conclusion. Similarly, one wouldimagine that this new system will be much easier toexplain to the jury and to family members of thedeceased.

COMMENTARY ON REPORTS TOPREVENT FUTURE DEATHS (PFD)

DAVID THOMSON

IntroductionOn 3 November 2020 the Chief Coroner, HHJ MarkLudcraft QC, gave revised Guidance on the matter ofcoroners making Reports to Prevent Further Deaths(known as Prevention of Future Deaths or PFDs). Asthe law on PFDs remains the same much is unchanged:the obligation on the coroner to issue a PFD where inhis or her opinion action should be taken to preventfuture deaths; PFDs are restricted to matters whichwere causative or potentially causative of the death;the restriction remains that the coroner’s role is toidentify areas of concern rather than specifyingparticular solutions; the timetable and the list ofrequired recipients are unchanged. There are howevera number of key developments that may have animpact on the approach that involved parties take tothe evidence that is provided to the coroner. These





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The nature of the commitment to take actionEvidence in support of taking actionThe coroner’s assessment of the organisation’sunderstanding of the area of concernThe coroner’s assessment of the organisation’scommitment to addressing the area of concernThe coroner’s consideration of the potentialrecipient in the context of any other PFDs sent tothat individual or organisationLocal trends

the inquest unless, unusually, consideration is beinggiven to making a PFD report before the resumedinquest.

Coroners should not be drawn into issuing PFDs aboutmatters that have not been explored properly duringinvestigation or the inquest.

In considering the current position, the coroner shouldconsider evidence and information about relevantchanges, if any, made since the death or plans toimplement such changes.

If a potential PFD recipient, for example an NHS Trust,has already implemented appropriate action to addressthe risk of future fatalities, the coroner can decide notto make a PFD. However a report to, for example, arelevant national organisation to highlight the issuesmore widely, may still be appropriate, provided theevidence persuades the coroner that the risk of futurefatalities may arise nationally and the coroner believesthat national action should be taken.

Of course, action to reduce risks may not yet have beenfully implemented by the potential PFD recipient, suchaction may be ongoing or a decision likely made to takespecific action in the near future. The need to takeaction may only have arisen from the evidence at theinquest. Whether a PFD report is required in thesecases will depend on the circumstances.

The Guidance explains relevant matters could be:

It is for the coroner to decide whether the duty tomake a PFD arises in any particular instance, having

Contain a concise overview in a relatively shortparagraph or twoNot be unduly general in their content; sweepinggeneralisations should be avoidedBe clear, brief and focusedBe meaningful and, wherever possible, designed tohave practical effectMake specific points of concern, raised by thecoronerFocus on the current position

Contain a detailed rehearsal of the facts of thedeath that has been the subject of investigationContain the history of the inquestContain personal information about the deceased,the family or others.

the person that she or he believes may have the powerto take such action(s).

The Guidance states that Chief Coroner is “committedto learning from PFDs with a view to encouragingpersons and organisations to make changes to try toprevent future deaths.”

PFDs are intended to improve public health, welfareand safety. The previous Articles 28’s were relativelyfew, but this has changed. Many more PFDs are beingconsidered and made, so revised Guidance is necessary.

Clearly PFDs are important, but they are “ancillary tothe inquest procedure and not its mainspring” (Re: Kelly(deceased) (1996) 161 JP 417). They are about learningabout what did or did not happen and looking to thefuture.

The Guidance states PFDs should:

PFDs should not:

All PFDs must be copied to the Chief Coroner’s office,as well as to persons or organisations who, in theparticular coroner’s opinion, should receive them.

Coroner’s duty to make a PFDUnder the new guidance, when considering whetherthe coroner’s duty requires her or him to make a PFDreport, the coroner should focus on the currentposition. This will normally be the position at the end of




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5.There is concern that the circumstance(s) creatinga risk of further deaths will occur or will continue toexist into the future. So it is a concern of a risk tolife caused by present or future circumstances.

6. Then, in the coroner’s opinion, action should betaken to try to prevent those circumstanceshappening again and so to reduce the risk of deathcreated by them.

7. If the above apply, the coroner has a duty toreport (“must report”) the matter to a person ororganisation who the coroner believes may havepower to take action.

It is a pre-condition to making a PFD that “the coronerhas considered all the documents, evidence andinformation that in the opinion of the coroner isrelevant to the investigation” (Regulation 28(3)).

Article 2 InquestsIn an Article 2 inquest the PFD may complete thestate’s duty to inquire fully (see R (Lewis) v HM Coronerfor the Mid and North Division of the County of Shropshire[2009] EWCA Civ 1403).

However, remember a PFD is not mandatory simplybecause an inquest is an Article 2 inquest.

The coroner’s procedural obligation under Article 2 ismost effectively discharged if the coroner announcespublicly not only her or his intention to make a PFDreport, if that is the intention, but also in broad termsthe substance of the report which she or he intends tomake.

Timing of the PFDNormally, the PFD will be made after the inquest isconcluded, because of the evidential pre-condition tomaking a report provided by Regulation 28(3), above.However, the concern about risk may arise from“anything revealed by the investigation”, including theinquest. So paragraph 7 of Schedule 5 permits a PFD tobe made after investigation but before an inquest isheard, so long as the pre-condition is complied with.

Where, for example, the coroner concludes that there

considered all the circumstances and the matter as awhole and hear representations if there are any.

The specific mention of “local trends” in the Guidance isa new emphasis or clarity. Coroners have always beenaware of particular local circumstances, organisations,past investigations and Inquests, however trends ortrending is possibly going to be a more open andarticulated matter. Further such trend evidence will bemore open to adequate consideration and evaluation.So, be prepared, if it is not the first time a particularconcern has been raised with an organisation and/or ifthey have been slow to implement change previously, acoroner may be more likely to issue a PFD in a currentcase.

The template documents for making a PFD should beused by coroners. The templates should not beamended or altered. If possible the template documentsshould be uploaded onto coroners’ systems.

The Guidance sets out some specific circumstancesengaging the Coroner’s duty to make a PFD, however itemphasizes in many places that all the circumstance areto be taken into account.

For now the duty arises, taking each step in turn, when:

1. The coroner has been conducting aninvestigation into a person’s death. Normally theinvestigation will be complete when the inquest isconcluded, but not always so.

2. Something revealed by the investigation,including evidence at the inquest, gives rise to aconcern about a risk of future deaths.

3. Note, the coroner is not restricted to mattersrevealed in evidence at the inquest. The matter“giving rise to concern” will normally be addressedby evidence at the inquest, but it may be somethingrevealed at any stage of a coroner’s investigation.

4. Also that “giving rise to a concern” is a relativelylow threshold (Coroners Inquests into the LondonBombings of 7 July 2005, per Hallett LJ, AssistantDeputy Coroner for Inner West London, 6 May2011, transcript p15).




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jury before the coroner sums up and directs on law.

The Guidance emphasizes again that adding to aninquest with matters regarding PFD with lengthyadditional evidence or conducting a separate lengthyadditional hearing should be avoided. We believe thatwill best be avoided by the early consideration of theissue of a PFD reasonably early in the investigation bythe coroner and interested parties.

The substance of the PFDWhere a coroner’s duty to report is engaged, the PFDmust state the coroner’s concerns and say that in thecoroner’s opinion action should be taken to preventfuture deaths. The PFD must be sent to the person(s) ororganisation(s) who the coroner believes has power totake such action (para.7(1)(c), Schedule 5 of the 2009Act).

The PFD need not be restricted to matters causative (orpotentially causative) of the death in question.Paragraph 7 is not so restricted, because Paragraph 7(1)(b) refers to “anything” revealed by the investigationwhich gives rise to concern that “circumstancescreating a risk of other deaths will occur …”

A PFD does not have to relate to a death just in similarcircumstances. The Guidance gives several exampleswhich we do not repeat.

A coroner may shed light by taking evidence andmaking a PFD on a “system failure” that has regional oreven national implications. However, coroners shouldnot be drawn into reporting about matters that havenot been explored properly at inquest (or investigation).

To be clear, the Guidance makes it clear that it is not asufficient basis for a PFD, simply because it occurs tothe coroner or an interested person that a certainmatter might benefit from consideration, if it has notbeen at all germane to the death under investigation.

We believe that the evidential assessment (above) of“sometimes the coroner may find it helpful to hearsome evidence which may be relevant for the purposeof making a PFD, but not strictly relevant to theoutcome of the particular inquest” contrasts with the

is an urgent need for action, she or he may make a PFDwith a view to action being taken without delay. TheRegulation 28(3) pre-condition may be satisfied duringthe investigation, but before the inquest, if the coronertakes the view that there is unlikely to be moreevidence to come on the matter of concern.

It was not the intention of the 2009 Act that inquestsmay be lengthened or their scope widened for thepurpose of hearing representations on PFDs. The ChiefCoroner has emphasized that, although a report maybecome an important aspect of the outcome of aninvestigation, it is essentially ancillary to the primarypurpose of an inquest, which is to make the statutorydeterminations, findings and conclusions relating to thedeath as recorded in the Record of Inquest (section 10of the Coroners Act, Rule 34 and Schedule Form 2 ofthe Coroners Rules).

Whilst this lack of intention to cause lengthening ofincreased scope is clear in the Guidance, it seems to usthat this is a hopeful assertion. There will be the needfor investigation, assessment, response andsubmissions. However, what seems more likely is thatthis will be more tailored to the Guidance andconsideration and making of PFDs.

Evidence concerning a PFDCoroners may hear and give weight to representationsby interested persons at the inquest as they see fit.Sometimes the coroner may find it helpful to hear someevidence which may be relevant for the purpose ofmaking a PFD, but not strictly relevant to the outcomeof the particular inquest. For example, a medicalwitness could, where appropriate, enlarge on her or hisearlier evidence, even while the jury is deliberating and,for example, explain about actions developed postdeath.

When coroners take evidence relevant to PFD matters,particularly in the absence of the jury in this way, greatcare must be exercised to ensure that such evidence isstrictly limited to post-death improvements andchanges for PFD, and does not include substantiveevidence about the death being investigated.

All relevant evidence regarding the death should beheard by the coroner and, if there is one, in front of the




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Schedule 5 of the 2009 Act] to identify thenecessary remedial action. As is apparent from thefinal words of rule 43(1), the coroner's function is toidentify points of concern, not to prescribesolutions.”

The action to be taken is a matter for the person ororganisation to whom the PFD report is directed topropose.

2. Coroners should be careful, particularly whenreporting about something specific, to base theirreport on clear evidence at the inquest or on clearinformation during the investigation, and to expressclearly and simply what that information orevidence is, and to “ensure that a bereaved family’sexpectations are not raised unrealistically.”

3. The PFD should not apportion blame, bedefamatory, prejudice law enforcement action orthe administration of justice, affect nationalsecurity, put anyone’s safety at risk, or breach dataprotection, for example by naming children orbreaching medical confidentiality.

4. Coroners should not make any otherobservations of any kind, however well intentioned,outside the scope of the PFD, because suchobservations are an expression of opinion widerthan is permissible (under section 5(3) of the 2009Act) and are therefore unlawful and to no effect (R(Mowlem plc) v Avon Assistant Deputy Coroner[2005] EWHC 1359 (Admin)).

5. The Guidance specifically comments that in thepast some coroners have from time to timeexpressed themselves in public with forcefullanguage. Phrases such as “I am appalled” or “I amdisgusted” have been used. They should not beused. Coroners should at all times use moderate,neutral, well-tempered language, befitting a judge.This applies to public hearings as well ascorrespondence and reports.

6. The PFD must state that “in the coroner’sopinion action should be taken” and that thecoroner believes the person/organisation has“power to take such action” (paragraph 7(1) and box

The coroner’s concerns (box 5 of the template). ThePFD will set out the details of the investigation (andinquest) and the circumstances of the death. It mustthen list the coroner’s concerns. These are theconcerns which the investigation has revealed,either at inquest or earlier during the investigation.

issue of what is germane to the death and investigation,however these will be matters of fact and degree, sowe will have to keep close attention to how this areadevelops.

The Guidance gives an illustration of where, say, thecoroner hears evidence that an operation has resultedin death. The surgeon gives evidence at inquest that, asa result of this, there is now an addition to the sum ofmedical knowledge that could improve surgicaloutcomes in the future. It states “bringing this learningto trust, regional or national attention by way of a PFDmay be entirely proper.” However this is but oneexample and no doubt is going to be many more.

Note coroners should not include a confidentialityclause in a PFD. And it should not generally benecessary to send extraneous documents, such as theRecord of Inquest or a recording, to the recipient, savefor a narrative determination if one has been made. Theintention is that the PFD report should be complete initself.

The PFD should set out:

1.

This part is the essence of the PFD. The coronershould express clearly, simply and “in neutral andnon-contentious terms” the factual basis for eachconcern (R v Shrewsbury Coroner’s Court, ex parteBritish Parachute Association (1988) 152 JP 123).

In some cases, the action to be taken following thecoroner’s expressed concern will be obvious, but itis not for the coroner to dictate precisely whataction should be taken. Rather the PFD should raiseissues and recommend that action should be taken,but not what that action should be.

As stated by Hallett LJ: “However, it is neithernecessary, nor appropriate, for a coroner making areport under rule 43 [the predecessor to para 7,




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In exceptional circumstances, where the duty to make areport does not arise, but the coroner neverthelesswishes to draw attention to a matter of concern. Theusual reason that no duty to make a PFD arises isbecause the matter does not relate to a risk of futuredeaths. In these circumstances, the coroner may write aletter expressing the concern to the relevant person ororganisation.

This could be discussed with interested persons atinquest and the correspondence could be copied tothem.

So this exceptional circumstance is where there iscircumstance(s) where the coroner wants to raise orhighlight a concern but the duty to make a PFD doesnot arise, usually because the matter does not relate toa risk of future deaths, in which case she or he couldinstead write a letter to the person or organisation.

The Guidance gives an example of the inquest into thedeath of Ian Tomlinson who died during protests at theG20 summit in London in April 2009. There wasevidence, which in the end was excluded from theinquest hearing, about Police Service vettingarrangements. This evidence did not relate to the deathor to future deaths, but it caused concern to thecoroner who discussed it with counsel, correspondedwith the Home Secretary about it, and disclosed thecorrespondence (with the Home Secretary’s consent) toall interested persons. In due course the HomeSecretary amended the vetting arrangements.

As with a PFD report, any letter must identify clearlythe specific element of concern. Writing a letter insteadof a report is an exceptional course of action. If thesubject matter relates to the prevention of futuredeaths, writing a PFD report is the default position.

Note well that the matter raised in the PFD does nothave to have been causative of the death underinvestigation. If there has been a serious failure in, say,a trust’s investigative process, this could have an impactupon the ability to learn from one death and so avoidother deaths, and may therefore be included within aPFD.

6 of the template). Again the coroner should notrecommend what precisely that action should be,but the coroner can highlight the area of concernand draw attention to it.

7. What about recommendations? In Re Clegg(deceased) (1996) 161 JP 521 (DC), Phillips LJ usedthe word “recommendations” in a general senseonly: “…again my conclusion is that in a situationsuch as this a coroner cannot be expected to domore than to make general recommendations andthat it must, at the end of the day, be for theNational Health Service to give detailedconsideration to how their recommendationsshould be implemented”. In other words, theGuidance is that the coroner should identify thespecific area of concern, raise it, but then allow theperson/organisation to provide the remedy. 8. The coroner must send the report to “a personwho the coroner believes may have power to takesuch action”: paragraph 7(1). A “person” includes anorganisation. Where a report is sent to anorganisation, the coroner should seek to identify arelevant person in the organisation who issufficiently senior to have the “power” to takeaction, if that is possible. 9. The PFD should be sent out either within 10working days of the end of the inquest, or within 10working days of the time before inquest when thematter of concern is revealed and consideredduring the course of the investigation. 10. Once a PFD has been sent, the coroner has nopower to withdraw it. The appropriate remedy forcorrecting any mistake of fact in the report is byresponding to it (as provided for in paragraph 7(1),Schedule 5 of the Coroners and Justice Act 2009Act and R (Siddiqui & Paeprer-Rohricht) v HMAssistant Coroner for East London (28 September2017) Admin Court CO/2892/2017).

A Letter from the Coroner instead of a PFD? The Guidance is clear - where an investigation(including inquest) gives rise to a concern that futuredeaths will occur, the coroner should make a PFDreport.




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timeframe) to address any concerns.

Where proposed actions have not yet been fullyimplemented, for example actions are still ongoing orwill be decided on in the near future, the factors forcoroners to consider (as set out above) will include thenature of the commitment to take action and anyevidence to support it.

The coroner will provide an assessment of the personor organisation’s understanding of and commitment toaddressing the concern raised.

This Guidance requiring the coroner to make and detailher is his assessment may avoid a PFD, in circumstancewhere the concerns are being addressed and so prove avery worthwhile aspect of the revised Guidance.

Mandatory recipients of the PFD If made, the coroner must send a copy of the PFD tothe Chief Coroner and also to all interested personswho in the coroner’s opinion should receive it(Regulation 28(4)(a)) – see further interested personsbelow.

The coroner must send a copy of any response(s) to theChief Coroner and to all interested persons who in thecoroner’s opinion should receive it (Regulation 29(6)).

The coroner may also send a copy of the report and/orthe response to “any other person [other thaninterested persons] who the coroner believes may findit useful or of interest” (Regulations 28(4)(c) and 29(6)(c)). The coroner should consider requests for copiesfrom “other persons” on a case by case basis. TheGuidance states that coroners should err on the side ofopenness unless there is a very good reason forrestricting access to these documents.

Interested persons

Obviously, who is an interested person will depend onall the circumstances of the investigation or inquest.The Guidance is that coroners should routinely sendrelevant PFDs to other organisations, such as theDepartment of Health and Social Care, the Health &Safety Investigation Branch, the Care Quality

Note also that, unlike a PFD, there is no mandatorycopying of such a letter or a response.

The role of the Jury in PFDsA jury is not permitted to make riders orrecommendations (ex parte Middleton [2004] 2 AC182). Coroners should not invite juries to make anykind of observation. Juries should be directed not toexpress an opinion on any matter other than thesection 5 matters to be ascertained (who, how, whenand where).

The Guidance states that in the right case, the coronerhas a discretion to leave to the jury, in addition to thedirect or indirect causes or contributions to the death,facts that are relevant to the coroner’s reporting power(under paragraph 7 of Schedule 5) particularly wherethose facts are disputed or uncertain. This is adiscretion not a duty, and in general it is better for thecoroner alone to deal with PFD matters, unless she orhe specifically needs assistance from the jury on whatoccurred factually.

What case is the “right” case will depend on all thecircumstances and appropriate restrain by the coroner. Disputed factsEven if facts are disputed, that does not prevent themaking of a PFD. A matter raised in the PFD does nothave to be demonstrated to have been causative of thedeath under investigation. Responding to a PFDA person or organisation served with a PFD mustrespond within 56 days, or longer if the coroner grantsan extension (Regulation 29(4) and (5)).

A response must detail the action taken or to be taken,whether in response to the report or otherwise, and thetimetable for it, or it must explain why no action isproposed (Regulation 29(3)).

The responder should also use the template form,which the Chief Coroner’s office can provide.

The best way for persons or organisation is to providerobust evidence in the response template that actionshave already been taken (or will be taken within a clear




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The recent decision of Greater Manchester Fire andRescue Service v Susan Ann Veevers provides welcomeclarification on the recoverability of inquest costs infatal accident claims. Specifically, it looked at situationswhere informal or equivocal concessions have beenmade and whether such concessions prevent inquestcosts from being recovered.

Factual BackgroundMrs Veveers (“the Respondent”) brought a claim againstGreater Manchester Fire and Rescue Service (“theAppellant”) and Paul’s Hair World Limited, following thedeath of her son, Stephen Alan Hunt (“Mr Hunt”). MrHunt was sadly killed during the course of hisemployment as a firefighter at the premises of Paul’sHair World Limited, due to heat exhaustion andhypoxia. The claim was brought pursuant to the LawReform (Miscellaneous Provisions) Act 1934 and theFatal Accidents Act 1976, alleging that the Appellantfailed to take reasonable care to ensure that Mr Hunt’suse of breathing apparatus and full personal protectiveequipment did not exceed a maximum of 20 minutesand/or that a proper watch was kept on him whenusing such equipment.

Prior to the issue of proceedings, the Respondent hadinstructed solicitors to investigate the cause of MrHunt’s death and an inquest was scheduled. Shortlybefore the inquest, the Appellant’s solicitors wrote toRespondent’s solicitors, stating:

“…Our clients are not in a position to consider anadmission of liability… We write in opencorrespondence in order to advise that our clients arewilling to compensate the estate and dependents ofStephen Hunt… for any loss which they may prove tobe attributable to the incident on 13 July 2013together with payment of their reasonable costs. It is

Commission, or the Department of Transport, so thatwider lessons can be learnt.

Where the deceased is believed to be under 18, a copymust also be sent to the Local Safeguarding ChildrenBoard (Regulation 28(4)(b)

All reports and responses about deaths in prisons andother detention centres should as a matter of goodpractice be sent to HM Inspectorate of Prisons in allcases. They should also be sent to the HM Prison andProbation Service and to the Independent AdvisoryPanel on Deaths in Custody.

Chief Coroner’s Response

The Chief Coroner may publish a report or a response,or part of one or in a redacted or summarised form(Regulations 28(5)(a) and 29(7)(a)). 59. A person ororganisation giving a response to a PFD may makerepresentations to the coroner about the release orpublication of their response (Regulation 29(8).Representations must be passed by the coroner to theChief Coroner (Regulation 29(10)). The Chief Coronermay also send a copy of a report or a response to anyother person the Chief Coroner believes may find ituseful or of interest (Regulations 28(5)(b) and 29(7)(b)).

The Chief Coroner publishes on the coroner section ofthe public judiciary website as many PFDs as possible,subject to some limited redaction. As a matter of policythere is, subject to representations and exceptions, apresumption of publication.

The Guidance explains that it is implicit in the statutoryframework that the Chief Coroner should have a role intaking some PFDs (and responses) even further.Therefore, from time to time the Chief Coroner willmake assessment(s) of areas of concern, whether fromsingle or multiple reports, and may advise action whereappropriate. He may consult on areas of concern andwhere feasible recommend action, whether by way ofadvice to government or an organisation or individual,or where necessary by recommending a change in thelaw.

RECOVERING THE COSTS OF ANINQUEST: GREATER MANCHESTERFIRE AND RESCUE SERVICE V SUSANANN VEEVERS [2020] EWHC 2550(COMM)

DOMINIQUE SMITH




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correspondence between the parties, Deputy DistrictJudge Harris found that there had been no admission ofliability by the Appellant. He accepted that theRespondent perceived there was a risk that theAppellant might resile from their statement that theywould compensate the estate and dependents of MrHunt and, in those circumstances, those costs wererecoverable.

The Appellant subsequently appealed the decision,arguing that the costs of preparing for and attendingthe inquest were not properly recoverable. Even if theywere, the Appellant argued in the alternative that theycould not be considered reasonable or proportionate, inthe light of communications between the parties.

The decision of the High CourtHHJ Pearce summarised the law in respect of recoveryof costs in a civil claim for the preparation for andattendance at an inquest as follows:

a) Reasonable and proportionate inquest costs maybe recoverable, so long as they can properly be saidto be incidental to the civil claim;b) Such costs will not be recoverable if liability is nolonger in issue between the parties;c) In determining whether liability is in issue, thecourt must look at all the circumstances of the case,but the central issue is likely to be whether theprospective defendant has admitted liability orotherwise indicated a willingness to satisfy theclaim;d) Liability will not be in issue if it has beenadmitted;e) A Costs Judge is entitled to look at anything lessthan an unqualified admission to see whether theprospective defendant’s position is one from whichit may resile or which leaves matters in issuebetween the parties;f) If the defendant’s position is not one of anunqualified admission in circumstances where suchan admission could have been made, the CostsJudge may be entitled to find that the failure tomake an unqualified admission justified theconclusion that the defendant might exercise itsright to resile from the admission and that thereforethe costs of the inquest could properly be said tobe incidental to the civil claim;

not our client’s intention to allege contributorynegligence or to seek any reduction of damages in thisregard. We confirm that our clients will deal with theclaims on a full basis.”

The Respondent’s solicitors replied, inviting theAppellant to admit liability as “the intention to paycompensation to the estate and dependents could bewithdrawn at any time”. The Respondent’s solicitorsthereafter stated that they would continue to preparefor the inquest “…until such time as liability is admitted ormy client’s claims are settled…”.

In a further exchange of correspondence, theAppellant’s solicitors replied that there was no need toprepare a letter of claim and that the claims by thedependents or the estate would be met withoutreduction. Pertinently, the Appellant did not admitliability.

The Respondent proceeded to attend the inquest withlegal representation, and thereafter issued theaforementioned proceedings. The Appellant served adefence, admitting liability to compensate the estateand dependents of the deceased for damages andconsequential losses. The Respondent also agreed topay the Appellant’s reasonable costs, which werereferred for assessment. The matter came before Deputy District Judge Harrisfor assessment. A key issue between the parties duringassessment was whether the Respondent was entitledto recover the costs of preparing for and attending theinquest. The Appellant argued that those costs werenot of and incidental to the claim for damages, and inthe alternative, could not be considered reasonable andproportionate. The Respondent, on the other hand,considered that the statements in the correspondencewere ambiguous, such as to render preparation for andattendance at the inquest both a cost of and incidentalto the civil claim.

Deputy District Judge Harris concluded that anadmission of liability prior to an inquest was animportant factor to be taken into account as to whetherthe costs of the inquest were recoverable and/orjustifiable. However, when considering the





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g) If the costs can be justified upon these principles,the mere fact that there are other reasons why thefamily of the deceased should wish to berepresented at the inquest, such as to avoid theinequality of arms, does not mean that the costs arenot recoverable. It is enough that the attendance tosecure relevant evidence in relation to matters inissues was a material purpose for the attendance.

HHJ Pearce concluded that there had been no error inthe judgment of Deputy District Judge Harris. Whilstthe Appellant had sought to draw parallels between thiscase and that of The Bowbelle, HHJ Pearce consideredthere were clear distinctions between the two cases. InThe Bowbelle, it was noted that negligence “had beenconceded’, whereas negligence, and liability generally,had not been conceded in this case. In addition, theAppellant had further declined to admit liability wheninvited to do so by the Respondent. HHJ Pearce didnot consider that the correspondence within the lettersequated to an admission of liability, thus theRespondent could not have entered judgment basedupon them, as had been suggested by the Appellant insubmissions. Consequently, the appeal was dismissed.

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What can we learn from the decision?This decision is no doubt a welcome one for bereavedfamilies. Where a fatal accident occurs and an inquestsubsequently ensues, a claimant’s reasonable andproportionate costs of attending the inquest will likelybe recoverable in civil proceedings, even if an informalor equivocal concession has been made. They will not,however, be recoverable if a defendant makes a formaladmission of liability.

The decision might be considered harsh by defendantpractitioners but provides some welcome clarity at leastand will no doubt serve its purpose in focussing mindsat an early stage on whether a formal admission ofliability should be made. Potential defendants should beaware that if they are going to make an admission pre-action the admission must comply with CPR 14 and bemade in a timely manner, ideally prior to any costsbeing incurred in relation to the preparation for theinquest. Should a potential defendant fail to admitliability prior to proceedings being issued they will likelybe ordered to pay the costs of the inquest as well asthose of the civil proceedings.

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