The High Court ordered the defendants in a dismissed fertility negligence case to reimburse the plaintiff’s litigation outlays, including the fees and witness expenses of two experts. It made no general order for legal costs, finding exceptional circumstances but concluding the doctor’s conduct did not justify an award of those costs to the unsuccessful plaintiff.
The ruling, delivered by Mr Justice Kevin Cross on 16 April 2021, concerned costs only. The court had dismissed Kim Hanrahan’s substantive claim on 11 March 2021. The costs judgment did not revisit that dismissal.
The claim arose from fertility treatment in 2011 and 2012. Hanrahan alleged that a fibroid had been missed, that treatment continued despite it, and that it was later removed by invasive surgery rather than a less invasive procedure. The defendants disputed those allegations. The court had found the fibroid was a type 3 fibroid that did not protrude into the uterine cavity and had little or no impact on fertility.
A letter sent by the first defendant, Dr John Waterstone, to Hanrahan’s GP after the operation described the fibroid as “submucus”, “very deep” and protruding into the cavity. The plaintiff and her experts understood that description to indicate a different type of fibroid, one more likely to affect fertility. Waterstone later testified that the description was a mistake. In the substantive judgment, the court accepted that explanation on the balance of probabilities, while saying the letter and the delay in explaining it had contributed significantly to the proceedings being brought.
For the costs hearing, the defendants sought 50% of their costs, acknowledging the misunderstanding caused by the letter. Hanrahan sought the costs of the first ten trial days and related submissions, arguing that the letter was central to her case and was not explained until Waterstone gave evidence on day ten. She had made an unsuccessful offer to settle for €50,000 plus costs. The judgment also records an earlier defendants’ offer to bear their own costs if the case was discontinued by a specified deadline.
Justice Cross found the GP letter was central to bringing the claim and that the defendants had left it unexplained despite the plaintiff’s reliance on it. He considered the circumstances exceptional and rejected the defendants’ request for half their costs. However, he also noted criticism of the plaintiff’s failure to address the scans before trial and declined to award her legal costs. The order was no order as to costs, except that the plaintiff was entitled to all outlays, including the two experts’ fees and witness expenses.