This was a complex clinical negligence claim with numerous overlapping issues on liability.
The claimant succeeded overall at trial, but withdrew and/or failed on some issues.
The defendant accepted that it would be inappropriate for the court to be asked to look at the costs referable to each issue on which the claimant was unsuccessful, accepting that they were “all part of the normal run of a clinical negligence claim” and that “no criticism [could] be made of the claimant or her lawyers for pursuing them.”
However, it sought a limited departure from the general rule that the unsuccessful defendant should pay the successful claimant’s costs to reflect the fact that the claimant did not succeed on that part of her case that related to “consent and pre-operative issues” which they said:
“constituted a discrete and major part of the case, which added significantly to the costs, and which it was not reasonable for the Claimant to pursue.”
The claimant contended for a full costs order in her favour and a payment on account in the sum of £250,000.
MRS JUSTICE YIP DBE:
25. An allegation that surgery has been performed without properly informed consent is a serious one. The allegation having been made, the Defendant responded to it by calling six witnesses who would not otherwise have been required. Mr Mirza, the treating surgeon, also dealt with the consent issue although he would have given evidence anyway.
26. Mr Counsell suggested that the consent issue occupied two days of the total trial length. Certainly, I felt at the time that a lot of time was being spent on an issue that was taking the Claimant’s case nowhere and, in reality, was distracting from the real issues.
This is very different from the situation in Webb [v Liverpool Women’s Hospital NHS Foundation Trust  EWCA Civ 365] where the Court of Appeal thought the allegations relating to the second issue had been dealt with briefly and that “there could not have been much in the way of costs attributable to them.”
27. I regard the pursuit of the consent issue in this case as something out of the ordinary. It is not simply that the Claimant lost this issue but rather that it was not reasonable for her to maintain it through to trial.
28. … Once witness statements had been exchanged in February 2017, the position had crystallised. In my judgment, it was unreasonable to continue to press on with this issue thereafter. It ought to have been obvious that a case on consent could not be made out and that persisting with that aspect would add significantly to the length of trial.
29. The consent allegations did not have a significant impact on the monetary value of the claim. At best, it might have been argued that some additional scarring and initial pain and suffering flowed from having open rather than laparoscopic surgery. However, it is clear from all I have seen and heard that this was never a real target of the claim. The real value of the claim lay in establishing that, but for the Defendant’s negligence, the Claimant would have benefitted from successful surgery.
30. The Defendant had made some limited admissions and therefore accepted that some damages were payable. The parties had made attempts to settle. There had been a mediation. Both parties made monetary offers. The Claimant’s was too high; the Defendant’s too low. The judgment sum lies between the two.
31. The Claimant also made on offer on liability, which I dealt with in my separate judgment considering the application of CPR 36.17. I repeat the terms of that offer, since I consider it to be relevant to the exercise of my discretion under Part 44:
“This is an offer on “liability” meaning breach of duty and consequent absence of the benefits of paragraph 4(a) in Particulars of Claim and presence of injury consequent upon the January 2012 surgery. The Claimant offers to settle for 80% of damages following a finding of “liability”.”
32. There was some dispute as to precisely what that offer meant or indeed whether any clear meaning could be discerned. However, looked at in the context of the case as a whole, it is plain to me that the Claimant was seeking 80% of the damages to be assessed on the basis that the Defendant’s breaches caused the serious complications after the surgery in January 2012 and the loss of the benefits of successful surgery.
33. The terms of the Claimant’s offer fit with my view as to the target of the claim for damages. It also lends support to my view that this is not a case where the Claimant has been only partially successful.
34. Looked at overall, it is clear that the Claimant was the undisputed “winner” in this litigation. However, in assessing “who has been responsible for the fact that costs have been incurred which should not have been”, the costs associated with the consent issue call for particular consideration.
35. I agree with Mr Counsell that no criticism can be made of the Defendant’s conduct of the litigation. I also agree with his observation that the Defendant’s side permitted the Claimant some leeway in how her case was conducted.
36. For the reasons set out above, I do consider that the way in which the consent issue was pursued on the Claimant’s side was unreasonable. In saying this, I do not suggest any form of professional misconduct or impropriety but the reference to “conduct” in the rules is wider than this. CPR 44.2(5)(b) requires consideration of whether it was reasonable to pursue a particular allegation or issue. I have concluded that it was not reasonable to persist with the consent issue.
37. Mr Counsell told me that the Defendant had asked whether the Claimant really did require all the Defendant’s witnesses to attend for cross-examination. The Claimant insisted this was necessary. The need for all the witnesses to attend undoubtedly added to the trial length and therefore to the costs on both sides.
38. The conduct of the Claimant in pursuing this issue is not the only relevant consideration though. I must also put into the balance my assessment that the Claimant did effectively succeed on a full liability basis and that the Defendant’s ‘success’ on this one issue did not have any substantial impact on the monetary claim. The Defendant could have protected itself on costs as a whole, including the costs referable to the consent issue, by making a sufficient monetary offer.
39. I also take account of the liability offer made by the Claimant, albeit at a late stage. It was made a little too late to be considered an effective Part 36 offer. I do not know to what extent the trial costs had been incurred by then. I doubt there was any huge increase in costs liability between the Friday afternoon and the Tuesday morning after the Bank Holiday. I have set out my interpretation of the offer above. Given the limited impact the consent issue had on the damages claim, even if it was viewed as 80% of the losses attributable to every pleaded allegation, it still represented a better outcome for the Defendant than the result after trial. Had the Defendant thought it necessary, clarification could have been sought and I am confident the Claimant would have been willing to agree that the offer carried no implied admission on the consent issues. Acceptance of the offer therefore represented another way in which the Defendant could have limited the trial costs.
40. In the circumstances, I do not consider it appropriate to attempt to divide up the costs relating to the consent issue and to make the Claimant liable for all such costs, as the Defendant invites me to. The Defendant suggests that approximately 30% of its costs relate to the consent allegations and that I should make an order that effectively provides for the Claimant to be responsible for 30% of the costs on both sides. I accept that the calculation put forward by the Defendant is put forward in good faith and represents a genuine attempt to split out the costs of the consent issue. However, I do not accept that is the appropriate approach.
41. Equally, I do not accept the Claimant’s suggestion that I should limit any costs for which she is liable to at most 10% of the ‘time costs’ relating to trial and trial preparation. That would represent a very modest sum. If I thought that was the extent of the costs wasted by the Claimant’s conduct on the consent issue, I would probably be persuaded not to depart from the usual order.
42. My approach in exercising my discretion is to say that the Claimant has overwhelmingly been the winner in the litigation. This was a claim for damages and the Defendant could have secured costs protection by making a sufficient Part 36 money offer and/or by admitting that it was liable to compensate the Claimant including for the loss of the benefits of successful surgery. The Claimant’s offer provided a further opportunity to save costs, particularly trial costs relating to liability. That encompassed the costs of the consent issue. On the other hand, pursuing the consent issue without proper consideration of the available evidence within the correct legal framework, added unnecessarily to the total costs expended on both sides. The Claimant must bear responsibility for that. I consider that it would be unjust to ignore this in the costs order I make.
43. The starting point that the unsuccessful party pays the successful party’s costs remains strong. However, the circumstances I have identified lead me to a limited departure from the general rule. Having weighed all the circumstances, I have decided that the appropriate order is that the Defendant should pay 85% of the Claimant’s costs, to be agreed or assessed.
44. In arriving at that percentage, I have looked at the approved costs budget for each party. I have considered how the costs break down and thought about the parties’ conduct as it relates to the various costs stages. I have acknowledged that the Claimant may initially have been acting reasonably in exploring the consent issue and that there is scope for disagreement as to which costs might be properly allocated to the consent issue. I do not pretend to have conducted any precise mathematical analysis. Rather, I have reached a judgment as to how best to do justice between the parties considering all the circumstances I have identified. The result is that the Claimant will be responsible for a meaningful proportion of her own costs to reflect the wasted expenditure on both sides in relation to the consent issue. However, in line with the general principle that the unsuccessful party pays the costs, the Defendant will be paying the bulk of the Claimant’s costs and all its own costs.
45. I suspect that the Defendant will consider that I have not moved far enough from the general rule and that the Claimant will maintain that I should not have moved at all. However, standing back and taking a broad view in the particular circumstances of this case, I consider that it is fair that the Claimant should recover most, but not all, of her costs.
46. Taking account of the total sum in the Claimant’s approved costs budget and noting the breakdown between incurred and estimated costs there, I consider the sum of £250,000 which the Claimant sought by way of a payment on account of costs, would have been entirely reasonable had I ordered the Defendant to pay her costs in full. In light of the 15% reduction I have ordered, I reduce the sum to £212,500.
47. Since circulating this judgment in draft, I have been told that the Defendant made a payment on account of costs in the sum of £100,000 on 13 September 2018. That sum falls to be deducted from the sum of £212,500 so that the Defendant will be required to make a further payment of £112,500.
48. I am grateful to the parties for agreeing the terms of an order to reflect this judgment and I make an order in those terms, namely:
i) The Defendant shall pay 85% of the Claimant’s costs of the action on the standard basis, such costs to be subject to a detailed assessment if not agreed, and payable within 28 days of assessment or agreement.
ii) The Defendant shall pay the Claimant the sum of £112,500 on account of costs (£100,000 having already been paid on 13 September 2018) by 4 pm on 11 October 2018.