The costs of a claimant awarded damages for clinical negligence were reduced by 5% where there had been a very late and significant reduction in his claim for loss of earnings. He was also required to bear the cost of a claim that he had not pursued at trial arising out of the same action.
The court was required to determine the costs between the parties arising from a clinical negligence claim.


The claimant had won his claim for damages for a brain injury arising from the negligence of the defendant trust.


The issues were (1) whether the claimant should pay the costs of a claim that was not pursued at trial, “the ophthalmic claim”, on an indemnity or standard basis (2) whether the claimant should have all of his costs or a proportion of them resulting from a late reduced claim for loss of earnings following he late introduction of evidence supporting the case on factual causation; (3) the amount of the payment on account to be paid by the defendant.


HELD: (1) The claimant was to pay the costs of and occasioned by the ophthalmic claim, as it was a discrete claim that he had brought and later dispensed with shortly before trial. The costs would not be confined to the expert report and solicitors’ fees only. That might well happen on assessment, but it would be wrong to limit the costs in that way in case there were other costs referable to the ophthalmic claim. The ophthalmic claim had been introduced at a time when it was supported by expert evidence and dropped when the expert evidence no longer supported it, which was responsible. The costs of that claim would be awarded on the standard basis.


(2) A modest reduction of 5% of the claimant’s costs, and not the 40% contended for by the defendant, would be appropriate as a result of the late reduction of the loss of earnings claim from £2 million to £585,000. That part of the claim should have been looked at much sooner and to that extent the claimant’s conduct had been unreasonable. While the progress of a claim would mean the development of experts’ thoughts and refinement of a claim, so marked was the instant refinement on loss of earnings that an explanation was required and the expert professor’s witness statement should have been introduced much sooner. Although there were advantages of having him at the hearing, his evidence was consistent with his notes on intra-cranial pressure. The professor’s evidence, specifically on the increase on intra-cranial pressure, shored up the claimant’s case on factual causation. However, without his evidence it could not be said that the claimant’s case on factual causation was non-existent. Therefore, the court declined to reduce the claimant’s costs. Late introduction of the professor’s evidence had not been unreasonable, but the CPR frowned upon it.


(3) The £100,000 proposed by the defendant as a payment on account was far too low. There was force in the claimant’s argument that a 100% uplift was reasonable where he had won all of his points. Removing the ophthalmic claim from the £670,000, the appropriate sun for payment on account was £300,000.


Costs determined

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