Alison Healey v Daniel McGarth & Anor

In contribution proceedings, responsibility for damage is apportioned by considering both the seriousness of each party’s fault and the extent to which each fault caused the damage. A claimant’s settlement does not prevent a liable co-defendant from recovering a contribution. The court may also use its broad costs discretion under Senior Courts Act 1981 to require a contributing party to pay part of another defendant’s costs of defending the main claim. That discretion depends on all the circumstances, including the parties’ conduct, the nature of their respective liabilities, their relative contribution to the damage and the overall costs position.

These were Part 20 contribution proceedings following Ramsay Health Care UK Operations Limited’s settlement of a fatal clinical negligence claim brought by Alison Healey, widow and executrix of Simon Healey’s estate. Mr McGrath, the surgeon, and Ramsay, which was liable for nursing failures, had both admitted liability. Ramsay sought a contribution from Mr McGrath in respect of the settlement damages, the claimant’s costs, its own costs of defending the main claim and the Part 20 costs.

Mr McGrath did not attend the trial or file evidence in the contribution proceedings. The court nevertheless considered the available evidence and determined the relative fault, causative contribution and costs consequences.

1. Apportionment. Under section 2(1) of the Civil Liability (Contribution) Act 1978, the contribution must be just and equitable having regard to each person’s responsibility for the damage. Applying Downs v Chappell [1997] 1 WLR 426, responsibility requires consideration of both the degree of fault and the degree of causative contribution.
2. Mr McGrath’s failures were the principal cause of the fatal delay. He failed adequately to respond to the signs of an anastomotic leak and failed to arrange timely diagnostic imaging. The nursing failures were real but materially subordinate. The appropriate apportionment of responsibility for the compromised damages was 75% to Mr McGrath and 25% to Ramsay.
3. Mr McGrath was therefore ordered to pay Ramsay 75% of the agreed damages and 75% of the claimant’s costs paid by Ramsay.
4. Ramsay’s main claim costs. The court followed the analysis in Mouchel Ltd v Van Oord (UK) Ltd (No 2) [2011] PNLR 26 that a claim for a party’s own costs of defending the main proceedings is not a contribution claim under the 1978 Act, but may engage the court’s general discretion under section 51 of the Senior Courts Act 1981. The discretion is fact-sensitive. Unlike the late and limited involvement in Mouchel, Mr McGrath was involved from the outset, bore primary responsibility and pursued an untenable defence. It was just to require him to contribute to Ramsay’s main claim costs, but one third, rather than the 75% claimed, was proportionate.
5. Part 20 costs. Ramsay succeeded in the contribution proceedings. Applying the general rule in Part 44 of the Civil Procedure Rules 1998, Mr McGrath was ordered to pay Ramsay’s Part 20 costs on the standard basis if not agreed.