The High Court has awarded costs to the Health Service Executive after rejecting a request by Catriona Crumlish for no order as to costs following the dismissal of her medical negligence claim.
In a judgment delivered on 25 April 2023, Ms Justice Mary Rose Gearty said there was no reason to depart from the usual rule that costs follow the event. The HSE had succeeded in the underlying case. The costs judgment did not revisit the substantive claim; it considered whether the circumstances justified making a different costs order.
The underlying dispute concerned whether a lump identified in Crumlish’s right breast in May 2017 was cancer that should have been detected, or a cyst. The main judgment found that she had not proved there was a discernible 15mm tumour at that time. The court said the evidence did not establish that the treatment then probably affected her position by October, when a 34mm tumour was identified.
Crumlish argued that the HSE’s successful position only became clear late in the 24-day hearing, and asked the court to make no order as to costs. The judge noted that the argument’s logic was clarified on day 21, but found that its thrust should not have been unforeseeable to the plaintiff’s expert. The defence pleadings said cysts explained the lump, and a report challenged the use of tumour-growth estimates based on a 1993 study. The dispute was raised in the report received during the hearing and explored with the plaintiff’s expert on day four.
The judge distinguished the case from Hanrahan v Waterstone, where a significant factual error by a medical expert had contributed to the plaintiff pursuing the case to trial. She found no comparable error or deliberate or egregious conduct by the HSE here. The plaintiff’s expert could have been recalled after the defence evidence, but no request was made.
The court concluded that nothing in the defendant’s conduct or the case’s circumstances justified departing from the usual costs rule. It ordered that the successful HSE was entitled to its costs.