The High Court refused a request for a higher costs order in a medical negligence action, directing instead that the plaintiff’s costs be taxed on a party and party basis.
The ruling concerned costs only. The defendants withdrew liability when the trial began, and the parties later settled the amount of damages. They agreed that the plaintiff would receive the costs of the proceedings but could not agree on how those costs should be assessed.
The plaintiff sought solicitor and client taxation for costs incurred from February or March 2015 until the trial began on 21 October. Her side argued that the defendants should have admitted liability after receiving letters dated 5 February and 16 March 2015. It said the case could not be defended without a urological expert and contended that the defendants’ failure to admit liability had caused the plaintiff unnecessary anxiety and stress. A claim for aggravated damages was withdrawn during the hearing and was not decided at trial.
The defendants argued that they were entitled to contest liability and that a decision to admit it could reasonably be made only after a consultation with their expert, Professor Hyland, on the morning of trial. His reports, dated 14 August and 7 September 2015, disputed the negligence allegations. The court also noted a report from obstetrician and gynaecologist Peter Lenehan, dated 29 October 2014, which disputed that a urologist needed to be consulted on the medical evidence then available.
The judge said the court could not properly infer misconduct or improper motives from how the defence had been conducted. The allegations supporting aggravated damages had not been tested in oral evidence and had been withdrawn. The judge also considered that the expert reports disclosed an apparent conflict of medical opinion that could have provided a defence if accepted at trial. The defendants’ expert evidence was not complete until September, and their final report offered the prospect of a successful defence.
The court said it was not setting a rule that failing to admit liability can never justify solicitor and client costs. In another case, such a failure could amount to an abuse of process and justify that basis of taxation. The judge concluded that this case did not warrant that order.
The plaintiff’s costs are to include liability and causation costs up to and including the first day of trial, costs of the quantum hearing through 27 October 2015, and any standby fees for medical witnesses intended to attend on 28 October. Either party may apply to the court if necessary.