Chadwick v Hollingsworth (No. 2)

Where a claimant obtains permission for a late amendment, the court should not ordinarily treat all pre-amendment costs as wasted merely because the amended case is substantially different. The question whether the original case would have failed may require evidence and trial assessment. A case-management judge should decide that question summarily only with due circumspection, particularly where the trial will proceed in any event and the original pleading retains material allegations. The proper order will usually require the amending party to pay the costs caused by the amendment, including properly attributable costs thrown away by an adjournment. The trial judge can then make a nuanced final costs order reflecting which allegations ultimately succeed.

The claimant brought a medical-negligence claim concerning infection and complications following knee-replacement surgery. After his original orthopaedic expert withdrew support, a replacement expert advanced substantially expanded allegations of breach and a causation case based on Bailey v Ministry of Defence, [2008] EWCA Civ 883. The claimant obtained permission to amend and to vacate the trial date.

HH Judge Knight QC ordered permission to amend on terms that the claimant pay all costs of the action to date, relying on the substantial change in case and his view that the original causation case would fail. The issue was whether that costs order was justified before trial.

1. Appeal allowed in relation to the costs order. The judge had erred in principle by treating the claim before amendment as worthless and summarily dismissing all costs incurred to that point.
2. The approach in Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137 identifies two relevant questions: whether the amendment substantially alters the case to be met and whether, without it, the action will fail. The first question could be assumed in this case. The second could not safely be determined summarily.
3. A case-management judge must approach the viability of an unamended claim with due circumspection. The trial judge will usually be better placed to decide the issue after hearing the evidence. A summary determination may nevertheless be appropriate where it can safely be made and justice, fairness or efficient use of resources requires it.
4. Here, the claimant had made no concession that the original case could not succeed. Material parts of the original breach case remained in the amended pleading. The proposed causation amendment raised an issue under Bailey v Ministry of Defence [2008] EWCA Civ 883 which the judge had acknowledged required further consideration.
5. The appropriate order below was that the claimant bear the costs of and caused by the amendment, including costs thrown away by the necessary adjournments to the extent not already covered. The trial judge could later make a more nuanced order according to the allegations on which the claimant ultimately succeeded.

• High Court (Queen’s Bench Division): varied the order of HH Judge Knight QC, requiring the claimant to pay the costs of and caused by the amendment and attributable adjournments, rather than all costs of the action to date.
• Court of Appeal: held that it had no jurisdiction because the decision was not a final decision for the purposes of the Access to Justice Act 1999 (Destination of Appeals) Order 2000, and remitted the appeal to the High Court: [2010] EWCA Civ 1210.