Harrap v Brighton & Sussex University Hospitals NHS Trust [2018] EWHC 1063 (QB) (09 May 2018)

C sought damages for clinical negligence arising from D’s failure to arrange a cardiology review following the discovery that he had a patent foramen ovale. C suffered a stroke in October 2012. C’s case that, had he been reviewed by a cardiologist, he would have been advised upon, and elected to undergo, surgical closure of his patent foramen ovale and the stroke would have been avoided. (paragraph 1)

…trial on 12 March 2018. On day three C discontinued the action. Having discontinued, C accepts that C should bear the costs of the action, but only up to the date of exchange of witness statements. He submits that, from that date, D should bear both sides’ costs as new evidence from one of the D’s factual witnesses, Professor Hildick Smith, emerged for the first time during his cross examination at trial. This new evidence was fatal to his case. It amounted to a change of circumstances and, C submits, provides a good reason for the Court to depart from the general default position that the discontinuing claimant should pay the defendant’s costs of the action in their entirety. He argues that the change in circumstances was not of his making but due to the D’s unreasonable conduct in failing to proof Professor Hildick Smith adequately and ensure that his witness statement covered the relevant areas. (paragraph 2)

D submits that the usual costs order should follow the discontinuance and that C should pay the costs of the action in their entirety. The claim was always doomed to failure for a host of reasons and the discontinuance only brought forward the inevitable defeat with associated costs consequences. C should not therefore be permitted to avoid the inevitable payment of costs by relying on irrelevant evidence which emerged in cross examination. (paragraph 3)

….ruling on the competing costs arguments arising from the discontinuance. (paragraph 4)

[There was detailed evidence relating to the facts of the case itself and its conduct: the date of exchange of statements May 2017, C’s cardiology report dated December 2017.]

…order that C bears the costs up to the date of service of C’s cardiology report of December 2017 and that thereafter there is no order for costs. I invite the parties to draw up the appropriate Order giving effect to this ruling. (paragraph 28)