The Claimant sought damages for clinical negligence arising from the Defendant’s failure to arrange a cardiology review following the discovery that he had a patent foramen ovale (an abnormal communication between the chambers of the heart). The Claimant suffered a stroke in October 2012. It was the Claimant’s case that, had he been reviewed by a cardiologist, he would have been advised upon, and elected to undergo, surgical closure of his patent foramen ovale and the stroke would have been avoided.
The Claimant case on breach of duty was that:
“The Defendants were negligent in that they failed to arrange any/any proper review in the cardiac clinic following the transoesophageal echocardiogram.”
The trial of the action commenced on 12th March 2018. On day three of the trial, the Claimant discontinued the action. Having discontinued, Mr Mylonas QC accepted that the Claimant should bear the costs of the action, but only up to the date of exchange of witness statements.
The Claimant’s Position on Costs
Mr Mylonas QC submitted that, from the date of exchange of witness statements, the Defendant should bear both sides’ costs as new evidence from one of the Defendant’s factual witnesses, Professor Hildick Smith, emerged for the first time during his cross examination at trial. This new evidence was fatal to his case. It amounted to a change of circumstances and, it was submitted, provided a good reason for the Court to depart from the general default position that the discontinuing claimant should pay the defendant’s costs of the action in their entirety. It was argued that the change in circumstances was not of the Claimant’s making but due to the Defendant’s unreasonable conduct in failing to proof Professor Hildick Smith adequately and ensure that his witness statement covered the relevant areas.
The Defendant’s Position on Costs
Mr de Navarro QC, for the Defendant, submitted that the usual costs order should follow the discontinuance and that the Claimant should pay the costs of the action in their entirety. The claim was always doomed to failure for a host of reasons and the discontinuance only brought forward the inevitable defeat with associated costs consequences. It was suggested that the Claimant’s position on costs was, “whilst ingenious, merely a smokescreen to avoid the inevitable costs consequences of a trial which was doomed to failure from the outset“. The Claimant should not therefore be permitted to avoid the inevitable payment of costs by relying on irrelevant evidence which emerged in cross examination.
MRS JUSTICE LAMBERT DBE:
14. There is no disagreement on the legal principles which I should apply in considering the costs position between the parties. The starting point is CPR 38.6(1) which provides that
Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant, against whom the claimant discontinues, incurred on or before the date on which the notice of discontinuance was served on the defendant
Thereafter the parties agree that the guiding principles to be drawn from the authorities were set out by Judge Waksman QC in Teasdale v HSBC Bank Plc  EWHC 612, as approved by Moore Bick LJ in one of the Teasdale appeals in Erica Brookes v HSBC Bank  EWCA Civ 354:
“i) When a claimant discontinues the proceedings, there is a presumption by reason of CPR 38.6 that the defendant should recover his costs; the burden is on the claimant to show a good reason for departing from that position;
ii) the fact that the claimant would or might well have succeeded at trial is not itself a sufficient reason for doing so;
iii) however if it is plain that the claim would have failed, that is an additional factor in favour of applying the presumption;
iv) the mere fact that the claimant’s decision to discontinue may have been motivated by practical, pragmatic or financial reasons as opposed to a lack of confidence in the merits of the case will not suffice to displace the presumption;
v) if the claimant is to succeed in displacing the presumption he will usually need to show a change of circumstances to which he himself has not contributed;
vi) however, no change in circumstances is likely to suffice unless it has been brought about by some form of unreasonable conduct on the part of the defendant which in all the circumstances provides a good reason for departing from the rule.”
15. The further point which I bear in mind is that the hurdle to displace the default rule in CPR 38.6(1) is high. In Nelson’s Yard Management Co v Eziefula  EWCA Civ 235, Beatson LJ underscored the high threshold for avoiding the usual costs consequences of a discontinuance and that, once there was to be no trial, it is not the function of the court considering costs to decide whether or not the claim would have succeeded.
16. It is with this uncontentious summary of the guiding principles that I consider the points in issue in this case.
Discussion and Conclusions
a) The merits of the claim
17. The central theme of Mr de Navarro’s submissions on costs is that the claim, however analysed, was always doomed to failure. I do not accept his submission. Having heard only a part of the evidence, I am unable to conclude that the claim was one which could never succeed. I accept that Mr Mylonas had an uphill struggle on his hands, not least because of the very tight timescale between the two “bookends” of the 4th May 2012 (when the TOE was performed) and the 5th October 2012 (the day of the Claimant’s stroke). He would have had to persuade me that the time interval from referral to Professor Hildick Smith and the consultation was towards the lower end of the 8 or 10 week interval and that the waiting time for the procedure was 12 weeks, rather than 3 calendar months, but I had yet to hear the full evidence on those points. As at the point of discontinuation, I still had an open mind on those points.
18. I also do not accept Mr de Navarro’s gloomy prognostication that the claim was destined to fail because the only route to referral was via Dr Jones who had already offered a referral to Professor Hildick Smith, only for that offer to be declined. This analysis overlooks the contents of the joint statement of the two cardiologists, Dr Saltissi and Professor Ray, where they set out that “we are agreed that it was reasonable for Dr Jones to review Mr Harrap (following the TOE) and to express his personal opinion on the management of his PFO. However, it was also agreed that irrespective of whether Dr Jones undertook the review, it was necessary that Professor Hildick Smith review Mr Harrap following the TOE“. Later in the joint report, when responding to the question of whether it was mandatory for Mr Harrap to be seen by Professor Hildick Smith after the TOE result was available, Dr Saltissi responded by saying that he did think it was mandatory; Professor Ray considered that, whilst it was not mandatory, “it would have been good practice for Mr Harrap to have been reviewed by Professor Hildick Smith if it is accepted that Dr Jones’s notes document that he had discussed referral for PFO closure and that Mr Harrap had declined“. Recognising the potential tension between the two statements, there was, at very least, a reasonable case for arguing that, irrespective of Dr Jones’ involvement and his discussion with the Claimant on 22nd May 2012, the Claimant should have been reviewed, additionally, by Professor Hildick Smith.
19. I also bear in mind that the fact that a claim may have always been doomed to failure may be a relevant ingredient militating against displacement of the general rule in CPR 38.6 (see the Waksman principles, at number (3)). However, in the absence of my having formed the view that it was plain that the claim would have failed, a merits assessment should not form part of the discretion exercise which I must perform (see Beatson LJ in Nelson’s Yard Management), particularly when I am ill-equipped to make that assessment having heard only part of the evidence which would have been deployed but for the discontinuance. I therefore place to one side, Mr de Navarro’s submissions in connection with the merits of the claim.
b) Change of circumstances
20. Before the presumption is displaced, it is clear that I must find that there has been a change of circumstances (and if so, separately, that I find that it is due to the unreasonable conduct of the Defendant, see below) to which the Claimant has not contributed. I find that there has been a change of circumstances as a consequence of the new evidence which was elicited at trial. The new evidence had a direct bearing upon the Claimant’s case and its effect was to shut down the claim on factual causation. Mr Mylonas found himself confronting a new factual scenario in respect of which he had no effective means of challenge. The time interval stated by Professor Hildick Smith of two weeks for his obtaining the records was unassailable given the explanation that the cardiology and general medical units were on two sites and the absence of any centralised computer storage of records.
I accept Mr Mylonas’ argument therefore that the effect of the new evidence was that there was a change in circumstances and, as he put it in his submissions on costs, his case was as a result “holed beneath the waterline”
21. Nor do I find that the Claimant or his team contributed to the change in circumstances.
Mr Mylonas no doubt, in the absence of any evidence to the contrary, considered he was on safe ground in putting to Professor Hildick Smith that he should have personally reviewed the TOE report. I do not therefore accept Mr de Navarro’s submission that the fact that the new evidence was elicited in cross examination supports the application of the CPR 38.6 presumption.
[c)] Unreasonable conduct on the part of the defendant
22. Mr Mylonas submits that his case on the mechanism for referral was clear from his pleadings. I do not accept this… His pleading was ambiguous. However, I also find that any ambiguity in his case was dispelled by the time of service of Dr Saltissi’s report of December 2017. That report made absolutely clear that the alleged failure to refer was levelled at the cardiology team of Professor Hildick Smith, rather than at Dr Jones and his team (see paragraph 9.5 and paragraph 9.7 of that report). Dr Saltissi set out that “there was a failure by the cardiology team to follow up the atrial abnormalities found on the echo and TOE” and “the only area of substandard care and hence of breach of duty was displayed by Professor Hildick Smith’s team in failing to follow up the abnormal echos appropriately“.
23. Following service of this report, it was incumbent upon the Defendant to review the claim. Even if, up to that point, Professor Hildick Smith’s request for the notes and the Claimant’s loss to follow up, were not considered by the Defendant to be relevant, those facts had become highly relevant following Dr Saltissi’s December 2017 report. A further statement amplifying Professor Hildick Smith’s involvement in the Claimant’s case should have been served at the latest following the Saltissi report together with an amended pleading. If, alternatively, Professor Hildick Smith’s further involvement following his consideration of the TOE on 6th May 2012 was not known to the Defendant, then I accept Mr Mylonas’ submission that it should and would have been had the witness been adequately proofed.
I accept Mr Mylonas’ submission that, by oversight, salient details were omitted from the witness evidence. This failure to set out the full story was unreasonable. I note that no explanation for the absence of this evidence has been provided by the Defendant at any stage.
24. For these reasons, I therefore conclude that, on the unusual facts of this claim, the default position that, following discontinuance, the claimant should bear the entirety of the defendant’s costs should be displaced. I accept that the threshold for rebutting the presumption in CPR 38.6 is high, but I find that the threshold has been reached in this case.
25. However, I make two modifications to the order which is sought by Mr Mylonas.
26. First, given that his case was clarified by the report of Dr Saltissi dated December 2017, I order that the Claimant should bear the costs in the usual way up to the date of service of that report (rather than from the date of exchange of witness evidence as advanced by Mr Mylonas).
27. Secondly, the order which I make from the date of service of the Saltissi report is one of no order for costs. Both parties accept that I have a broad discretion as to the appropriate and fair costs order. In his brief oral submissions in the wake of his discontinuance Mr Mylonas contended that, in the alternative to his recovering his costs from the date of exchange of witness statements, I should make no order as to the costs from that date. In my judgment, this is the appropriate and fair order to make in all the circumstances. The Claimant could have made a request for further particulars to clarify when Professor Hildick Smith annotated the TOE report with “Notes please.” Although it may have been assumed by the Claimant’s team that the annotation was made later in the Claimant’s history, it was open to the Claimant’s team to seek further clarification on the point and this would have been the only safe course. In these circumstances, the fair order is that each party should bear its own costs from the date of service of Dr Saltissi’s report.
28. I therefore order that the Claimant bears the costs up to the date of service of Dr Saltissi’s report of December 2017 and that thereafter there is no order for costs. I invite the parties to draw up the appropriate Order giving effect to this ruling.