Tracey, R (on the application of) v Cambridge University Hospital NHS Foundation Trust & Ors

Where a factual hearing is necessary to resolve disputed issues and the findings are mixed between the parties, the appropriate costs order may be that there be no order as to costs. The court may refuse further procedural steps to pursue costs against a third party where intervening events have overtaken the underlying application and those steps would be disproportionate.

The judgment determined costs following a factual hearing ordered by Ouseley J concerning disputed events surrounding two DNACPR notices. The findings favoured the deceased’s family regarding the first notice and the clinicians regarding the second. The claimant, the first defendant and the second defendant made submissions on costs. The court also considered an application by the first defendant for further procedural steps to pursue a costs order against the Daily Mail.

1. The factual hearing was appropriate and necessary to determine disputed issues between the deceased’s family and the treating clinicians. The issues determined went beyond those identified in the claimant’s proposed admissions.
2. Although the first defendant argued that findings concerning events before the first DNACPR notice had no causative effect, determination of those factual issues was necessary.
3. In light of the mixed factual findings, the appropriate order as between the claimant, the first defendant and the second defendant was that there be no order as to costs.
4. The application by the first defendant for further procedural steps to pursue a costs order against the Daily Mail was refused. A judgment to which both DNACPR notices were annexed had overtaken the Daily Mail’s original application, and further procedural steps would not have been a proportionate response by the court.

This was a first-instance costs determination. The judgment records that Ouseley J had ordered the factual hearing.