DDM v Al-Zahra (PVT) Hospital & Ors

On consequential matters following a successful appeal, the court should confine itself to issues properly before it and leave outstanding disclosure questions to the Master. Costs relating to a discrete procedural episode should not ordinarily be reserved merely because other applications may later determine whether the litigation continues in the jurisdiction. Where the information placed before the Master was materially incomplete, a partial costs award may fairly reflect the parties’ respective responsibility for the episode.

The judgment concerned consequential matters following the claimant’s successful appeal from the Master’s decision to set aside an order extending time. The claimant sought an order requiring the first to sixth defendants to disclose medical records and sought the costs of the appeal, the defendants’ application dated 20 April 2017, and the hearing before the Master on 12 July 2017. The defendants argued that disclosure should be dealt with by the Master and that costs should be reserved pending applications intended to bring the action to an end in this jurisdiction.

The court therefore addressed the proper allocation of responsibility for disclosure and costs arising from the procedural episode.

1. The court declined to make an order concerning disclosure of the claimant’s medical records. Issues concerning disclosure were not strictly before the judge and were to be dealt with by the Master.

2. The application to set aside the Master’s extension orders and the successful appeal constituted a discrete episode in the litigation. Its costs should therefore not be reserved merely because the defendants contemplated further applications concerning the continuation of the action in this jurisdiction.

3. The claimant was awarded the costs of the appeal, to be assessed on the standard basis if not agreed.

4. The claimant was awarded 75 per cent of the costs of responding to the defendants’ application dated 20 April 2017 and of the hearing before the Master on 12 July 2017. The reduced award reflected that the information provided to the Master concerning the second extension order was less complete than it should have been and that the Master might have reached a different view had the application been identified as a rehearing.

The judgment records that the claimant had successfully appealed from the Master’s decision to set aside one of the orders extending time. The substantive judgment in the matter was [2018] EWHC 346 (QB). The present judgment dealt only with consequential matters.