High Court departs from normal costs order over unreasonable conduct

A High Court judge has sought to explain in detail how she arrived at her decision to cut by 15% the costs payable after a successful clinical negligence claim.

In Welsh v Walsall Healthcare NHS Trust (Costs) [2018] EWHC 2491 (QB), Mrs Justice Yip was ruling on costs after the claimant won her claim for compensation for serious complications she suffered following bariatric surgery.

However, there was an issue around consent on which she failed and the judge said the way in which the claimant had pursued it 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.”

Yip J said: “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.”

She also took account of a late liability offer made by the claimant. This was made “a little too late to be considered an effective part 36 offer”, but she said she was “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”.

In the circumstances, the judge said it was not appropriate to divide up the costs relating to the consent issue and to make the claimant liable for them, as the defendant has submitted.

The claimant had suggested limiting costs for which she was liable to a maximum of 10% of the ‘time costs’ relating to trial and trial preparation – which the judge said would be such a modest sum that she would probably not depart from the usual order – while the defendant said that around 30% of its costs related to the consent allegations.

“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.

“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.

“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.”

Christopher Limb (instructed by Pattinson and Brewer) for the claimant; James Counsell QC (instructed by Browne Jacobson) for the defendant.

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Costs News
Published date
11 Oct 2018

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