The Court of Appeal has awarded the Health Service Executive its costs of an appeal brought by Catriona Crumlish, after dismissing her appeal in October. The costs ruling, delivered on 21 November 2024, addressed only who should pay the appeal costs.
The court had provisionally indicated in its principal judgment that the HSE, as the successful party, should receive its costs. It invited Ms Crumlish to make written submissions if she sought a different order. She argued that there should be no order as to costs in either the High Court or the Court of Appeal; the HSE responded.
The underlying claim concerned a lump Ms Crumlish presented with at an HSE clinic in May 2017. She alleged it was a cancerous lesion that the HSE had failed to detect. The High Court dismissed the claim because she had not established that the lump was a tumour rather than a benign cyst. The Court of Appeal agreed that the claim failed on that causation issue. Neither court needed to decide whether the HSE had been negligent or breached a duty of care.
Ms Crumlish’s costs submissions relied on her experts’ view that the lump should have been aspirated to establish whether it was a cyst or tumour. Her experts considered the failure to aspirate a breach of duty, while the HSE’s experts disagreed. The costs ruling stressed that the question of whether aspiration was required had not been considered or decided at trial.
The Court of Appeal also said the submissions did not account for the trial judge’s findings that the lump was probably a cyst. The appeal court had previously cited findings that the radiologist likely saw a 12mm cyst and had not missed a tumour. It had also concluded that the lesion found in October was not in the same position as the May lump.
Applying section 169(1) of the Legal Services Regulation Act 2015, the court said the usual position is that the entirely successful party in civil proceedings is entitled to costs unless the circumstances justify another order. It found no ground to deprive the HSE of that prima facie entitlement and directed that it receive the costs of the appeal. The ruling did not make a costs order for the High Court proceedings.