At our Exeter claims club we cover the following topics: • 'Inquests, the whys and the wherefores' - Dale Collins, partner at Browne Jacobson considers death at work, insurers position, witnesses, procedure and outcomes • Nick Kitchen, Costs Draftsman at Burcher Jennings looks at recent costs decisions • Mark Fowles, partner at Browne Jacobson looks at the role of witness statements - what should go in them, what should not, the format and their use at trial. https://www.brownejacobson.com/insurance

1. Claims club
March 2016

2. Agenda
9.30am Start
1) Nick Kitchen, Costs Draftsman at Burcher Jennings will be looking at recent costs
decisions
2) Mark Fowles, partner at Browne Jacobson will be looking at the role of witness
statements - what should go in them, what should not, the format and their use at
trial.
11.00am Break
3) Dale Collins, partner at Browne Jacobson will be considering death at work,
insurers position, witnesses, procedure and outcomes
12 noon Close with lunch

3. INTRODUCTION
TO THE CORONER
& INQUESTS
Dale Collins

4. What we will cover today?
• Inquest formalities overview
• Inquest practicalities
• Benefits of representation at inquest

5. Who is the Coroner?
• Responsible for investigating deaths and determining the cause of death
• Independent Judicial Officer appointed and appointed / paid by the local
authority
• Qualifications: lawyer (>5 years standing) under 70 yrs old
– Some are dual qualified (law and medicine)
• Governing Legislation
– Coroners (Inquest) Rules 2013
– Coroners (Investigations) Regulations 2013
– Coroners and Justice Act 2009

6. What does the Coroner do?
Upon reporting of a death the Coroner can do one of three
things:
• certify the death as due to natural causes without a post-mortem
• certify as due to natural causes after a post-mortem
• initiate an investigation into the death (under CJA 2009)
When must the Coroner investigate a death?
• Death is violent or unnatural (including death due to self harm)
• The cause is unknown
• Death in custody or state detention

7. What is an unnatural death?
• “Unnatural death” is wider than “unnatural causes”
• Test is not whether the cause of death is natural, but whether the
circumstances of the death are.
• A death is unnatural “whenever a wholly unexpected death, albeit
from natural causes, results from a culpable human failure” – R
(Touche) v Inner North London Coroner [2001]
– Decd gave birth to healthy twins by caesarean section.
– 11pm BP 120/60
– No further monitoring until 1.35am when BP 190/100
– Suffered left sided hemiplegia and cerebral haemorrhage and died.
– Expert evidence described the lack of monitoring as “astonishing” and advised that with monitoring and
earlier intervention death would probably have been avoided.
– Hypertension leading to cerebral haemorrhage was a natural medical cause, but the circumstances of the
death were unnatural and an inquest should be held.

8. What is the purpose of an inquest?
• Fact finding exercise
– It is not a trial / purpose is not to apportion blame but…
– It may feel like it during the inquest…!
• Four key questions
– Who the deceased was?
– How, when and where the deceased died?
– NB: Article 2 provisions – “how and in what circumstances”
• Conclusions and liability [s10(2) CJA 2009 /old rule 42]
– “No conclusion shall be framed in such a way as to appear to determine any
question of:
1. Criminal liability on the part of a named person, or
2. Civil liability’’
– Evidence can deal with issues relevant to fault / negligence so long as relevant
to exploring ‘how’ someone died

9. Types of inquest
• “Jamieson inquest”
• “Middleton inquest”
– Article 2 ECHR – Enhanced Investigation
– “There are some cases in which the current regime for
conducting inquests…does not meet the requirements of the
Convention…Only one change is in our opinion needed: to
interpret “how”…as meaning not simply “by what means” but
“by what means and in what circumstances”.”
R v Middleton (2004)

10. What is the scope of an inquest?
• Coroner has wide discretion in setting scope of inquest (ex parte
Smith)
• For all types of inquest, it is now expected that:
− “culpable and discreditable conduct is exposed and brought to
public notice” [Lord Bingham in Amin (2003)]
− It is the duty of the Coroner.....to ensure that the relevant
facts are fully, fairly and fearlessly investigated. He must
ensure that the relevant facts are exposed to public scrutiny
particularly if there is evidence of foul play, abuse or
inhumanity” [ex parte Jamieson (1993)]

11. What evidence can the Coroner
hear?
• Relevant hearsay evidence is admissible
– Oral / documentary
• Coroner’s inquest is not bound by strict law of evidence
• No prohibition in legislation or rules
• Cannot be excluded if relevant
• Question: how much weight is given to such evidence?

12. What should the inquest achieve?
• Independent scrutiny of events surrounding a violent /
unnatural death
• Establish the facts
• Allow properly interested persons an opportunity to question
witnesses
• Draw attention to circumstances which might lead to further
deaths

13. When does a Coroner sit with a jury?(1)
• Coroners and Justice Act 2009 (Part 1, s7)
– S7(1) Default position – inquest must be held without a jury
 Default position
 Not about reasons not to do so
– s7(2) An inquest into a death MUST be held with a jury if:
 The coroner has reason to suspect that the deceased died in custody or state
detention AND the death was violent/unnatural OR cause of death is unknown; or
 the death resulted from act /omission of a police officer OR member of a service
police force
 death was by notifiable accident, poisoning or disease which must be reported to a
government department or inspector
 Policy reasons – to be seen as independent from state

14. When does a Coroner sit with a jury?(2)
• s7(3) An inquest into a death MAY be held with a jury if:
– The coroner thinks there is ‘sufficient reason’ for doing so
 Discretion / balance
 Consider wishes of family
 Do facts bear resemblance to mandatory situations?
 Difficult medico-legal issues determined by medical-legal QC than coroner / jury
– Should decide scope of inquest first

15. Who can ask questions at an inquest?
• Coroner
• Properly interested person (“PIP”) or their legal representatives):
– a parent, child, spouse and any personal representative of the deceased
– any insurer who issued a life insurance policy, or beneficiary of such a policy
– any person who may have caused, or contributed to, the death of the deceased
– (If death caused by an injury/disease relating to the deceased’s employment) a
trade union representative for the deceased’s trade union
– a representative of an enforcing authority or person appointed by a government
department to attend
– the Chief Officer of Police
– any other person who, in the opinion of the Coroner, is a PIP
• Jury (if a jury inquest)
• Order of questioning: Coroner, family, PIPs, witness representative.

16. Inquest pathway
• Coroner opens inquest shortly after death
• Usually able to release body for funeral at that time or soon after
• Coroner’s Officer collates evidence
• Pre-inquest reviews (PIR) in complex cases
– Includes written / oral submissions on jury / Article 2 / witnesses / disclosure
• Coroner re-opens inquest for full hearing
• Coroner’s Officer swears in jury (if applicable)
• Coroner hears evidence
• Coroner sums up/directs jury
– Includes written / oral submissions on conclusion
• Conclusion / completion of inquisition form
• Death certificate issued and death registered

17. Giving evidence
at an inquest

18. Before the inquest
• Review your witness statement
• Be familiar with the entries made in the medical
records
• Consider the types of questions which may be
asked and responses
• Make sure you know how to get to the Coroner’s
Court and have relevant contact numbers.

19. The inquest (1)
• Generally, witnesses may sit through the whole hearing
• Coroner will call witnesses in chronological order
• Evidence on oath or affirmation
• Questions:
– By coroner
– The family or their lawyer
– Other ‘’interested parties’’
– Your lawyer

20. The inquest (2)
• Arrive at the Coroner’s Court in good time.
• Bring some water and/or non-fizzy drinks with you (and
snacks (but avoid “noisy” wrappers) as the day(s) will
be long).
• Dress smartly (jacket if possible but no scrubs). Do not
wear black, no loud/bright jewelry.
• You may take your own copy of your statement to the
stand if you wish.
• Be supportive of your colleagues and all other staff.

21. The inquest (3)
• The Coroner’s Court is open to the public. Members of
the Deceased’s family, witnesses, legal representatives
and members of the press may be present.
• Stay composed and do not react visibly to anything that
is being said in the Courtroom – the Coroner will
observe faces.
• Ensure mobile phones are switched off in Court.
• Your conduct should be reserved and respectful.
• Politely avoid engaging with the family.

22. Answering questions (1)
• Witnesses should be prepared for the Inquest.
Advise them:
– Answer the question you are asked
– Beware pauses!
– Do not venture an opinion unless asked
– Questions outside your area of expertise
– If you need to refer to the records, do so
– If you don’t know the answer, say so!
– Inappropriate questions – the role of your lawyer

23. Answering questions (2)
– If you did not hear or understand a question, simply
ask for a clarification or repetition.
– Direct your answers to the Coroner and speak
slowly, clearly and calmly.
– Do not be put off by any questioning ‘tactics’ such
as confusing long winded questions!

24. How does an inquest fit in with
other investigations? (1)
• Coroner’s and Justice Act 2009, Schedule 1
• Police:
– Check - criminal investigation or acting on behalf of the coroner?
– Coroner can be asked to suspend investigation by prosecuting authority / Director of Service
Prosecutions investigation homicide / related offence
– Coroner must suspend investigation when aware person has appeared before Court in
relation to homicide of the deceased
– Evidence of criminal activity by identifiable person comes to light during investigation?
 Coroner MUST suspend investigation
 Coroner MUST adjourn the inquest part-heard
 Coroner MUST direct police to conduct criminal investigation
 Coroner MUST furnish CPS / DPP with a report to determine any criminal charges to be brought
against the individual
– Inquest opened and immediately adjourned until outcome of police investigation
• Coroner has a general power to suspend where it appears reasonable to do so

25. How does an inquest fit in with
other investigations? (2)
• Health and Safety Executive (HSE)
– Different scope of investigation
– Can run along side Coroner’s investigation
– HSE can ask Coroner to suspend investigation
– Memorandum of understanding
 E.g. HSE discloses report to Coroner
 E.g. HSE as a PIP to inquest
– Prosecution prior to inquest where minimal risk of unlawful killing conclusion
at inquest.

26. THE CORONER’S
CONCLUSIONS

27. What can the coroner conclude?
• Short form conclusions
 Natural Causes
 Accidental death
 Suicide
 Unlawful killing
 Open
 Alcohol/Drug Deaths
 Road Traffic Collision
• Long form conclusion (narrative conclusion)

28. Short form conclusions (1)
• Natural causes
• The result of a natural disease process – see Ex parte Benton, Court of Appeal
• Where a patient suffers from a potentially fatal condition and medical treatment
does no more than fail to prevent the death
• If there was a failure to give medical treatment to such a patient, even
negligently, the death would still be from natural causes
• Where a patient is suffering from a condition, which did not in any way threaten
his life, but the treatment caused the death, the proper verdict is accident or
misadventure
• Accidental death
– Person dies not from a natural cause but from either an event over which there was no
human control or an unintended act or omission;
– Cf: Misadventure – an unintended consequence of an intended act (rarely used)

29. Short form conclusions (2)
• Suicide
• The coroner must be satisfied beyond reasonable doubt that:
• The deceased did the act that resulted in his death AND
• When he did the act he intended to end his life (difficult to prove!)
• If the Coroner is not satisfied both apply he will consider accidental death /
open verdict / narrative verdict
• Unlawful killing
• Covers all cases of unlawful homicide
• E.g. gross negligence manslaughter
• E.g. corporate manslaughter
• Criminal standard of proof – beyond all reasonable doubt
• Open
• Insufficient information for the Coroner to reach a conclusion

30. Long form conclusions (narrative)
• Especially where short form verdict is inadequate
• More helpful than short form verdict
• Reflects the fact finding spirit of the Inquest
• Increasingly common in medical and some deaths at work
cases
• Must not contravene Section 5(1) or Section 10(2)
“… judgmental conclusion of a factual nature, directly relating to the
circumstances of the death. It does not identify any individual nor does
it address any issue of criminal or civil liability.” Middleton (2004)
• Vary in length - factual paragraph(s) summarising what has
happened

31. Long form conclusion - example
• “Mrs H died of bronchopneumonia resulting from
dementia. Her death was probably accelerated by a
short time by the effect on her pneumonia of
injuries sustained when she fell through an
unattended open window, which lacked an opening
restrictor” Longfield Care Homes (2004)

32. PREVENTION OF
FUTURE DEATHS
(PFD)

33. When is a PFD report issued? (1)
• Mandatory where the evidence gives rise to a concern that circumstances
exist which create a risk that other deaths will occur in the future
• In the Coroner’s opinion, action should be taken to prevent the occurrence
or continuation of such circumstances, or to eliminate or reduce the risk
– Para. 7 of Schedule 5 of the Act wide scope; coroner’s concern may arise from
“ANYTHING revealed by the investigation”
– Para. 15 of Guidance Note 5: ‘Sometimes it may be necessary to hear some
evidence which may be relevant for purpose of making a report but not
strictly relevant to outcome of the inquest’.
• Para. 10 of the Guidance note No 5:
“Giving rise to a concern is a relatively low threshold” (London Bombings of July
2005/Lady Justice Hallett)

34. When is a PFD report issued? (2)
• Can be issued at inquest or at any point during investigation!
– Precondition: Coroner has considered all relevant documentation and evidence
(see Regulation 28(3))
• A matter for the coroner alone?
– The chief coroner would ‘encourage assistance from IPs including written
submissions’ See para 15 of Guidance note No 5
• Report can be issued to a non-PIP
• Standard Form – “…they should not be unduly general in their
content…They should be clear, brief, focused, meaningful and designed
to have practical effect”

35. What’s the fall out from a PFD
report?
• Recipient must respond within 56 days
– Must include an action plan and timetable for implementation or reasons why
no action proposed
• Adverse publicity
• Impact on commercial contracts
• Spot light on systemic practices (time-consuming; expensive)
• Re-appearance before the same Coroner with the same problem later?!
• Supports litigation

36. How do you avoid receiving a
PFD?
• Conduct a thorough investigation at an early stage
• Produce a clear and relevant report and disclose to Coroner
• Clear action plan that has been monitored / completed
• Specific organisational lesson-learning evidence
• Ensure witnesses are aware of the new policies / procedures!
• Co-operate with other PIPs
• Coroner may opt to write to organisation for reassurance where need for PDF is
uncertain

37. INQUESTS
AND CLAIMS

38. Interface between inquests and
claims (1)
• Claim can be brought three years from death
• Inquest can ‘make or break’ a claim!
– Coroner’s conclusion
– Obtain transcript of inquest
• Litigation can run parallel but usually follows inquest
– Inquest as a testing ground for evidence and witnesses
• Fishing expedition
• The use of statements provided to the Coroner, evidence at the
inquest, and transcripts
• Legal representation at inquest - consider admissions breach and
causation prior to inquest

39. Interface between inquests and
claims (2)
• Beware of apologies v explanations v admissions!
– Especially in complaint correspondence
• Claim may not always reflect findings of inquest!

40. Interface between inquests and
claims (3)
• Criminal proceedings
– Police
– HSE
• Used to test evidence by both potential
defendant(s) and prosecution
• Used to identify strong/weak witnesses

41. SUMMARY

42. What can you do?
• Instruct early!
• Early instruction will ensure you are represented at
any interviews under caution
• Pre-Interview disclosure in advance of any
interview
• Early indication of expert Police evidence on the
“causes” of the accident

43. • Early access to a raft of evidence both expert and
eye witness through the Inquest process may
enable an early assessment on the strength of any
civil claim
• Ability to “test” the evidence at Inquest without
the risk of any finding of fault
• Ability to influence the decision on criminal
prosecution before charges are brought

44. ANY QUESTIONS?

45. Contact us…
Mark Fowles – mark.fowles@brownejacobson.com
01392 458734 / 07971 192964
Dale Collins – dale.collins@brownejacobson.com
01392 458770 / 07909 883246