Cutting v Islam

Under CPR 44.2, identifying the successful party requires an assessment of substance and reality. A claimant who obtains damages for an established breach and causative loss may be the successful party even if a substantially larger alternative claim fails. The court must then consider whether costs should be adjusted having regard to all the circumstances, including partial success, conduct, offers and late amendment. A late amendment does not automatically attract the defendant’s costs where it preserves the essential case, overlaps materially with the original issues and does not substantially alter the case to be met. A reduction may nevertheless be appropriate to reflect the amendment’s timing and the commercial reality of a very small recovery.

The claimant brought a clinical negligence claim arising from the defendant’s treatment of her deceased husband. The original claim alleged that earlier diagnosis would have produced a cure or, alternatively, prolonged his life. Following amendments and trial, the court found breach of duty and causation only in relation to approximately four months’ lost life, for which damages of £50,000 had been agreed. The claimant had originally valued the claim at approximately £1.5 million.

The outstanding issues concerned the identity of the successful party, the effect of the late re-amendment restoring the prolongation-of-life case, and the appropriate costs order under CPR 44.2.

1. The claimant was the successful party. Applying the substance-and-reality approach in Roache v Newsgroup Newspapers Ltd [1998] EMLR 161, she obtained damages which she could not have recovered without pursuing the litigation to trial. The defendant defeated the cure claim but did not defeat the claim that his breach had shortened the deceased’s life.

2. The defendant was not entitled to all costs incurred before the late re-amendment. The principle stated in Beoco Limited v Alfa Laval Co Ltd [1995] QB 137, and discussed in Chadwick v Hollingsworth [2010] EWHC 2718, applies where a late amendment substantially alters the case and the action would otherwise fail. Here, the re-amendment restored an alternative prolongation-of-life case which had been part of the original formulation. The relevant expert evidence and causation issues substantially overlapped.

3. The general rule under CPR 44.2 therefore applied, subject to the court’s discretion. The defendant had made no protective Part 36 or Calderbank offer reflecting its own surgical expert’s evidence that some prolongation of life was probable. There was no unreasonable pursuit of an issue or exaggeration of the claim by the claimant.

4. Despite that conclusion, a 100 per cent costs award was unjustified. The late amendment had some impact on costs and the claimant recovered just over 3 per cent of the claim’s asserted value. The defendant was ordered to pay 75 per cent of the claimant’s costs.