NKX v Barts Health NHS Trust

Permission to appeal should be refused where the proposed ground challenges a factual causation finding that was properly supported by the evidence and has no realistic prospect of success.

A successful claimant will ordinarily receive costs, but the court must exercise its discretion by considering the issues on which the claimant succeeded or failed, the circumstances of the litigation and whether disputed issues caused unnecessary expense. Costs should not be deducted where unsuccessful allegations were necessary to resolve the issues or did not materially increase costs.

An interim payment and payment on account of costs may be ordered despite a proposed appeal, with payment arrangements tailored to protect the parties pending the appeal.

Following judgment for the claimant in a clinical negligence claim, the defendant sought permission to appeal against the finding that delivery would probably have occurred by 01.31 hours absent the breaches of duty, and sought a 25 per cent reduction in the claimant’s costs.

The claimant sought costs on the standard basis, an interim payment of damages and a payment on account of costs. The court had to determine whether the proposed appeal had a realistic prospect of success, how costs should be apportioned, and whether ancillary payments should be stayed or delayed pending any appeal.

1. Permission to appeal. Permission was refused. The finding that delivery would probably have occurred by 01.31 hours was supported by the evidence. The evidence established that urgent obstetric assistance should have been sought at 01.00 hours, and the judge was entitled to use the actual 31-minute interval between recognition of the emergency and delivery as the likely interval had the call been made earlier. There was no realistic prospect of persuading the Court of Appeal that this conclusion was impermissible.
2. Costs. The claimant was the successful party and was ordinarily entitled to an order for costs. Applying the factors in CPR 44.3(4) and all the circumstances, no deduction was made. The failed antenatal-counselling allegations did not significantly increase costs and were necessary to determine the consequences of the breaches concerning counselling in labour. Although the claimant had advanced the wrong causation construct and had sought damages for all brain damage, the issue was reasonably litigated, much of the expert evidence was necessarily incurred, and the defendant had not clearly pleaded or advanced its alternative case until late in the proceedings.
3. Interim payment and payment on account. The court approved an interim payment of £572,990.25, including the CRU payment, and a payment on account of costs of £500,000. The sums were apportioned between the Department of Work and Pensions, the claimant’s parents and the claimant’s solicitors. Because permission to appeal might be sought, payment of £500,000 to the solicitors was delayed until 14 days after the appeal position was resolved. The payment to the parents and payment on account of costs were ordered within 14 days, subject to repayment if the appeal succeeded.