A High Court judge has refused to order that the successful defendant in a case discontinued during trial should receive all of its costs because it was the defendant’s fault that the evidence which torpedoed the claim did not come out earlier.
Harrap v Brighton and Sussex University Hospitals NHS Trust  EWHC 1063 (QB) was a clinical negligence case which was discontinued on the third day of the trial because of new evidence that emerged from one of the defendant’s factual witnesses, Professor Hildick Smith, during cross-examination.
The claimant argued that this amounted to a change of circumstances and was 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. His counsel said the claimant should bear the costs of the action only up to the date of exchange of witness statements.
The defendant submitted that 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.
Mrs Justice Lambert said that, having only heard part of the evidence, she did not accept that the claim was always going to fail, but did find the new evidence elicited at trial amounted to a change of circumstances.
“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 [the claimant’s counsel] found himself confronting a new factual scenario in respect of which he had no effective means of challenge.”
The judge found that following service by the claimant of an expert report in December 2017, “it was incumbent upon the defendant to review the claim”, as the evidence that eventually came up in court had become “highly relevant”.
She said a further statement amplifying Professor Hildick Smith’s involvement in the claimant’s case should have been served “at the latest” following the claimant’s report together with an amended pleading.
If, alternatively, Professor Smith’s further involvement 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”. Lambert J continued: “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.
“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.”
She ruled that the claimant should bear the costs in the usual way up to the date of service of the December report, and from that date there would be no order for costs on the basis that there was a clue in the evidence about which the claimant’s team could have sought further clarification. This would have brought the issue out into the open much earlier.
Michael Mylonas QC (instructed by Irwin Mitchell) represented the claimant, and Michael de Navarro QC (instructed by Hempsons) the defendant.