James Patience - Claims for Funeral Expenses



There is no statutory definition of what constitutes a recoverable funeral expense under either the Fatal Accidents Act 1976 or the Law Reform (Miscellaneous Provisions) Act 1934. The best guidance that can be gleaned from the case law in the area is that to be recoverable, funeral expenses must be reasonable in all the circumstances including the deceased's station in life, creed and racial origin[1]. The open-ended nature of this test has meant that decisions of the Court vary on what is allowed as a recoverable expense. It is clear that decisions in this area are particularly fact-sensitive.

Generally it seems that courts will allow the cost of a headstone to mark the grave but not the cost of a memorial. The distinction between a headstone to mark the grave and a memorial can be traced back to the case of Hart v Griffiths-Jones[2] and the distinction was confirmed in later cases[3]. In the recent case of Mosson v Spousal (London) Ltd [4] Mr Justice Garnham cited the case of Gammell v Wilson[5] as authority for the fact that a headstone that marks the grave is a legitimate expense but the cost of a memorial is not. In that case the cost of a memorial bench was not allowed. This approach was also confirmed in the 2014 case of Knauer v Ministry of Justice[6].

However, there have been some exceptions to this apparent rule. A claim for a memorial did apparently succeed in the unreported case of Kegworth v British Midland Airways[7]. In the unusual case of St George v Turner[8] the court allowed a claim of over £50,000 under the Law Reform (Miscellaneous Provisions) Act 1934 for expenses which included the cost of building a Buddhist family altar in Japan. This author is not alone in considering the case ofSt George to be incorrectly decided. It is also difficult to reconcile the decision inKegworth with the decisions inMosson,Knauer andGammell. It is submitted that the approach recently confirmed inMosson is the correct approach.

Generally the cost of a wake will not be allowed on assessment by the court.  The cost of a wake was not allowed in the case ofMossonwith Mr Justice Garnham relying on the decision inGammellas confirmed in the case ofKnauer. Mr Justice Garnham stated:

Bean J (as he then was) pointed out in Knauer v Ministry of Justice that, in the first instance decision in Gammell v Wilson, Mr Bennet Hytener QC, sitting as a deputy judge, disallowed the costs of a wake. As Bean J held "Mr Hytener's decision has been regarded as good law ever since". He was not prepared to depart from it and nor am I.[9]

The cost of a wake was also not allowed in the case of Jones v Royal Devon & Exeter NHS Foundation Trust[10] .The cost of funeral clothes and the cost of what was on any view an elaborate wake were not allowed in the case of Quainoo v Brent & Harrow Health Authority[11].

In the case of St George the considerable cost of a memorial day and an anniversary reception were both allowed. However, as discussed above, this case must surely be wrongly decided in light of the other authorities in this area. There are instances where very modest claims for expenses which are strictly for a wake or reception have succeeded at first instance and this author has had some success in settling modest claims out of court for the costs associated with a wake[12].

The above is an edited extract from the book "A Practical Guide to Claims Arising out of Fatal Accidents" by James Patience which is published by Law Brief Publishing and is available online, through Amazon and at all good legal bookshops. James is a barrister at Atlantic Chambers practising in clinical negligence and personal injury.


James Patience

[1] Gammell v Wilson [1982] AC 27

[2] [1948] 2 All E.R. 729

[3] See also the case of Stanton v Ewart F Youldon Ltd [1960] 1 WLR 543 and Gammell op cit

[4] [2016] EWHC 53 (QB)

[5] [1982] AC 27

[6] [2014] EWHC 2553 (QB)

[7] (unreported) see Kemp & Kemp vol 1 paragraph 20-022

[8] [2003] CLY 936

[9] [2016] EWHC 53 (QB) at para 49

[10] [2008] EWHC 558 QB

[11] (1982) 132 NLJ 1100. This unusual case concerned the death of a member of the Ghanaian Royal family. While the costs associated with wake were disallowed the costs of cars for the funeral procession in Ghana and also the cost of transporting the body to Ghana were allowed.

[12] Smith v Marchioness/ Bowbelle (27 January 1993) The Times