Council ordered to pay £68k on account in costs over coroner burial policy case

The Divisional Court has ordered Camden Council to pay £68,000 in costs on account following the high-profile case where judges ruled that the Senior Coroner for Inner North London acted unlawfully in adopting a policy that resulted in Jewish and Muslim families facing delays in the burials of family members, contrary to their religious beliefs.

The Senior Coroner’s policy was held to amount to an unlawful fetter upon her discretion, and also to be irrational, to breach Articles 9 and 14 of the ECHR and to amount to indirect discrimination contrary to the Equality Act 2010 (“EQA”).

The claimant, the Adath Yisroel Burial Society, subsequently sought its costs, a move resisted by the Senior Coroner, Mary Hassall.

Camden last month indicated at one point that it was minded not to indemnify the Senior Coroner for any adverse costs order that might be made against her.

Up to that point, the parties had proceeded on the basis that the statutory indemnity under Regulation 17 of the Coroner Allowances, Fees and Expenses Regulations 2013, made pursuant to section 34 of and Schedule 7 to the Coroners and Justice Act 2009, would extend to any such costs order.

In the event, Camden confirmed earlier this month that it would indemnify the defendant in respect of any adverse costs order.

Lord Justice Singh and Mr Justice Whipple decided that there were two related bases on which they concluded that the claimants must succeed, at least in part, in this application, applying the approach in R (Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 207; [2004] 1 WLR 2739:

First, the Senior Coroner’s failure to reconsider her policy in light of an intervention by the Chief Coroner, who said her policy was unlawful on a number of grounds. “This is an important consideration when considering where, in fairness, the claimants' costs should fall (the fourth limb of Davies).”

Secondly, the Senior Coroner’s Addendum Detailed Grounds, filed in answer to the Chief Coroner's detailed grounds, marked the point at which she ceased to be neutral in stance (the second limb of Davies). “By them and from that point she advocated the correctness of her policy. She was no longer simply giving information to the court.”

The judges said: “For either or both of these reasons, we conclude that the Defendant, indemnified by Camden, must pay the Claimants' reasonable costs from the date she filed her Addendum, such costs to be the subject of detailed assessment if not agreed. From that date onwards, fairness requires that the costs should not fall on the Claimants' shoulders; alternatively, from that date onwards, the Defendant ceased to be neutral."

Lord Justice Singh and Mr Justice Whipple confirmed that they would make no costs order prior to 8 March 2018, when the Senior Coroner filed her Addendum Detailed Grounds. “That is consistent with Davies and the principle that a coroner who remains neutral should not ordinarily be liable for costs. That principle in and of itself envisages what some may regard as unfairness, because it will leave a successful claimant having to bear their own costs of a successful action.

“But there are, up to the point when the Addendum was entered, no particular considerations or factors which cause us to exercise our discretion in the Claimants' favour by awarding costs to them. For the reasons we have given, the position changes from the point that the Addendum was lodged.”