Harrap v Brighton & Sussex University Hospitals NHS Trust

Where a claimant discontinues, the starting point is that the claimant pays the defendant’s costs. Departing from that position requires a good reason, ordinarily including a change of circumstances not caused by the claimant and resulting from unreasonable conduct by the defendant. The court should not conduct a detailed merits assessment after discontinuance, particularly where only part of the evidence has been heard. New evidence which materially changes the factual basis of the claim may justify departure from the default rule. The costs order must nevertheless reflect when the claimant’s case became sufficiently clear and the extent to which the claimant could have sought clarification earlier.

The claimant brought a clinical negligence claim concerning the alleged failure to arrange cardiology review after the discovery of a patent foramen ovale. The claim was discontinued during the third day of trial. The parties agreed that the claimant should ordinarily pay the costs, but disputed whether new evidence elicited from a defendant’s witness justified a different order.

The claimant argued that the evidence materially altered the causation case and resulted from inadequate preparation of the witness. The defendant maintained that the claim had always been bound to fail and that the ordinary consequences of discontinuance should apply. The issue was the appropriate costs order following discontinuance.

1. Default rule. Under CPR 38.6(1), a claimant who discontinues is ordinarily liable for the defendant’s costs. The burden rests on the claimant to show a good reason for departing from that position. The principles stated in Teasdale v HSBC Bank Plc [2010] EWHC 612, and approved in Erica Brookes v HSBC Bank [2011] EWCA Civ 354, were applied.
2. The fact that a claimant might have succeeded at trial is not, by itself, enough to displace the presumption. Conversely, it may be relevant if it is plain that the claim would have failed. However, after discontinuance the court should not ordinarily decide the merits, particularly where it has heard only part of the evidence. The high threshold identified in Nelson’s Yard Management Co v Eziefula [2013] EWCA Civ 235 applied.
3. There had been a material change of circumstances. The defendant’s witness gave new evidence that he had reviewed the relevant investigation, requested the medical records and then lost the claimant to follow-up. That evidence added significant time to the proposed treatment pathway and effectively defeated the claimant’s factual causation case. The claimant had not contributed to the change.
4. The defendant’s failure to disclose the witness’s full account was unreasonable. By the time the claimant’s expert report was served in December 2017, the alleged breach was clearly directed to the cardiology team. The defendant should then have clarified the witness evidence or amended its case. The threshold for displacing the presumption was therefore met.
5. The claimant was ordered to pay the costs up to the date of service of the expert report. Thereafter there was no order as to costs. The claimant could have sought clarification about the witness’s annotation, so recovery of costs from an earlier date was not justified.