�When is an admission not an admission?

Mrs Veevers’ son, Stephen Hunt, a firefighter, tragically died fighting a fire in July 2013.  Mrs Veevers brought a claim alleging that her son’s employer did not take reasonable care to ensure that he was monitored while using breathing apparatus and personal protective equipment, to protect him from exposure to the flames for more than 20 minutes. The reported case of Greater Manchester Fire and Rescue Service v Susan Veevers [2020] EWHC 2550 (Comm) concerns the appeal of the decision of a Costs Judge brought by the Fire Service (“the Appellant”).

Before an inquest into the events took place the Fire Service reassured Mrs Veevers (“the Respondent”) that they would meet the claim in full to spare her the stress and strain of proving her case. This court decision concerns whether the substantial costs of preparing for and attending the inquest (£141,000 out total costs of £334,000) were recoverable from the Fire Service  when the Appellant had agreed to compensate Mrs Veevers in full prior to the inquest hearing.  

Costs “of and incidental to” proceedings

Costs ‘of and incidental to’ proceedings can be awarded in the discretion of the Judge under Section 51 of the Senior Courts Act 1981. The recoverability of inquest costs as costs ‘incidental to’ civil proceedings was considered in Ross v The Owners of the Ship ‘Bowbelle’ [1997] 2 Lloyd’s Rep 196. In this case, inquest costs were not deemed recoverable as liability had been admitted.. Many cases have subsequently followed this decision. In principle inquest costs are recoverable but admitting liability prior to the inquest minimises the risk they will be awarded.

Why were the inquest costs awarded in this case?

The problem for the Appellant in this case was that the concessions made were ambivalent and made relatively shortly before the inquest after much of the preparatory work had been done.

The timeline was as follows:

• In a letter dated 4 February 2016 the Fire Service said that they had ‘not made an assessment of the potential for liability’ and ‘were not in a position to consider an admission of liability’ but they would meet the claim for ‘any loss which they (Mrs Veevers) may prove to be attributable to the incident on 13 July 2013 together with payment of their reasonable costs’.
• In response Mrs Veevers’ solicitors said by way of a letter dated 16 February 2016 that they would continue to prepare for the inquest until liability was admitted.
• The Fire Service responded by email on 4 March 2016 stating that there was no need for Mrs Veevers to prepare a Letter of Claim.
• The inquest was held from 4 April to 18 May 2016.
• Proceedings were issued in July 2016 and served in November 2016. The claim settled settled for £80,000.

The court considered that the inquest investigation was a valid mechanism 4 for the Respondent’s solicitors to obtain the information needed to bring a claim. The court also considered the effect of CPR Part 14 which deals with admissions made before the commencement of proceedings and the rules about applying to withdraw such an admission. If an admission is made before service of a Letter of Claim technically these rules do not apply. It could be withdrawn without overcoming the hurdle of proving this would be just. The Costs Judge decided that the Fire Service had not admitted liability so the inquest costs were ‘of and incidental’ to the claim. A willingness to settle is not the same as an admission of liability. The Appeal Court agreed.

Practical Implications

What lessons can be taken from this decision? Reviewing the arguments the Judge found persuasive it is clear the points to bear in mind are:

• Unqualified admission - Admissions of liability must be unqualified to establish that inquest costs are not incidental to issues in the civil claim. To underline this it is wise to state that any admission made pre-action is in accordance with Part 14 of the Civil Procedure Rules so that there can be no argument that the Claimant could not rely on it.
• Timely admission - The admission should be made as soon as practicable. Any costs relating to preparation for the inquest will probably still be considered incidental to a claim if incurred prior to the admission. The longer the time interval between the admission and the inquest, the harder it will be for a claimant to persuade a costs Judge that the costs were incidental to the claim.

It is uncertain whether even an unequivocal admission of liability will provide costs protection against a Human Rights Act claim seeking a declaration, though time limits are stricter for these cases and current coroner’s court backlogs daunting.

Even if a full admission is not made before the inquest, all is not lost. Costs must still be reasonable and proportionate. The full inquest costs can be divided up by the Judge, allowing only those which are properly relevant to the litigation process following the case of Lynch v Chief Constable of Warwickshire Police SCCO 14/11/2014.

Calls to extend legal aid to families in inquests where the state is legally represented have been rejected by the Government on the grounds of cost and the need to preserve the inquisitorial as opposed to an adversarial process. Arguably, the current funding system could encourage families to seek to bring a civil claim so that they can secure legal funding for representation in the most distressing of circumstances where the presence of lawyers for only one party does not seem fair.

Click here to read the full October 2020 edition of Claims Online.