FAILING TO TAKE A PROPER PROOF OF EVIDENCE IS UNREASONABLE CONDUCT AND LEADS TO COSTS CONSEQUENCES FOR DEFENDANT – EVEN WHEN CLAIMANT DISCONTINUES

May 9, 2018 · by · in Applications, Conduct, Costs, Witness statements

The judgment today in  Harrap v Brighton & Sussex University Hospitals NHS Trust [2018] EWHC 1063 (QB) illustrates the importance of taking adequate witness statements.  It shows that a failure to review the situation and take a full proof of evidence can amount to unreasonable conduct and have important consequences in costs.  The defendant’s failure to take a full proof of evidence from a doctor led to it not recovering most of its costs for the period after exchange of witness statements, even though the claimant discontinued the action on the third day of trial.

 

” I accept Mr Mylonas’ submission that, by oversight, salient details were omitted from the witness evidence. This failure to set out the full story was unreasonable. I note that no explanation for the absence of this evidence has been provided by the Defendant at any stage”

THE CASE

The claimant brought an action in clinical negligence against the defendant. After cross-examination of one of the defendant’s witnesses the claimant discontinued the case.  However the claimant argued that the normal costs presumptions should not apply because of inadequate witness statements provided by the defendant.

“On day three of the trial, Mr Mylonas QC, Counsel for the Claimant, discontinued the action. Having discontinued, Mr Mylonas accepts that the Claimant should bear the costs of the action, but only up to the date of exchange of witness statements. He submits that, from that date, the Defendant should bear both sides’ costs as new evidence from one of the Defendant’s factual witnesses, Professor Hildick Smith, emerged for the first time during his cross examination at trial. This new evidence was fatal to his case. It amounted to a change of circumstances and, Mr Mylonas submits, provides a good reason for the Court to depart from the general default position that the discontinuing claimant should pay the defendant’s costs of the action in their entirety. He argues that the change in circumstances was not of his making but due to the Defendant’s unreasonable conduct in failing to proof Professor Hildick Smith adequately and ensure that his witness statement covered the relevant areas.“

THE NEW EVIDENCE

Mrs Justice Lambert considered the new evidence that came to light in cross-examination.

    1. The new evidence which emerged at trial was elicited by Mr Mylonas during his cross examination of Professor Hildick Smith when he put to the witness that the TOE results should have come back to him for review. In response, Professor Hildick Smith gave evidence that he had, in fact, seen the results of the Claimant’s TOE shortly after the procedure was performed. He said that he thought that the test results had come across his desk on or around 6th May (2 days after the procedure) and that he had, at that time, requested the patient records. He had annotated the report of the TOE, with the words “Notes Please” at that time, that is, on or around 6th May 2012. He told Mr Mylonas that, for some reason, the notes were not provided to him and so the trail “went cold” and the Claimant was “lost to follow up” until his attention was once more directed to the Claimant by Dr Kuhn’s letter (to which he responded on 18th September 2012). Having elicited this evidence Mr Mylonas was bound to follow it up. Professor Hildick Smith said that, but for the loss to follow up, he would have expected to have received the notes after about 2 weeks of his request; he said that it would take some time as the cardiology department was in a different hospital site from Dr Jones’ clinic and medical notes were not centralised in 2012. He said that once he had received the notes he would probably have then written to the Claimant’s GP and Dr Jones offering to review the Claimant. Putting it all together, his best assessment was that if it had all gone to plan, he would have been writing to the Claimant’s GP and to Dr Jones on around 27th May 2012. He would have then awaited a response from Dr Jones and, if Dr Jones had requested a referral, only then would the 8 or 10 week waiting time have started.
    2. This evidence was wholly new. It did not feature in the witness statement which had been signed by Professor Hildick Smith and served on the Claimant. This witness statement which was dated 26th July 2017 set out Professor Hildick Smith’s involvement in the Claimant’s treatment at paragraph 8 as follows: “I did not meet the Claimant but I reviewed the results of the bubble contrast echocardiogram which he underwent on 13thApril 2012. I wrote to the Claimant’s GP the same day to confirm the results of the contrast, this being a large right to left shunt on provocation. I arranged for the Claimant to undergo a transoesophageal echocardiogram to confirm the anatomy of the shunt. I did not meet the Claimant at any point“. Professor Hildick Smith then set out the exchange of correspondence between Dr Kuhn and himself concerning the possibility of the Claimant stopping the medication which had been prescribed. At paragraph 12 of his witness statement he addressed the Claimant’s allegation that the Claimant should have been reviewed by the cardiology team following the TOE. He there set out the timescales within which a cardiology consultation would have taken place and the waiting time for surgery on the assumption that the referral had been made, as was the routine practice, by the physician who requested the investigation. At no stage in his witness statement did Professor Hildick Smith suggest that he had in fact reviewed the results of the TOE personally and that he had then requested the notes with a view to offering the Claimant a referral. Nor did he acknowledge that the Claimant had, on his own assessment, been “lost to follow up”.

 

THE LAW AND ITS APPLICATION IN THIS CASE

The judge then considered the relevant legal principles and whether the presumption that the discontinuing party should pay all the costs was displaced on the facts of this case.

Legal Framework
    1. There is no disagreement on the legal principles which I should apply in considering the costs position between the parties. The starting point is CPR 38.6(1) which provides that “Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant, against whom the claimant discontinues, incurred on or before the date on which the notice of discontinuance was served on the defendant”. Thereafter the parties agree that the guiding principles to be drawn from the authorities were set out by Judge Waksman QC in Teasdale v HSBC Bank Plc [2010] EWHC 612, as approved by Moore Bick LJ in one of the Teasdale appeals in Erica Brookes v HSBC Bank [2011] EWCA Civ 354:
“i) When a claimant discontinues the proceedings, there is a presumption by reason of CPR 38.6 that the defendant should recover his costs; the burden is on the claimant to show a good reason for departing from that position;
ii) the fact that the claimant would or might well have succeeded at trial is not itself a sufficient reason for doing so;
iii) however if it is plain that the claim would have failed, that is an additional factor in favour of applying the presumption;
iv) the mere fact that the claimant’s decision to discontinue may have been motivated by practical, pragmatic or financial reasons as opposed to a lack of confidence in the merits of the case will not suffice to displace the presumption
v) if the claimant is to succeed in displacing the presumption he will usually need to show a change of circumstances to which he himself has not contributed;
vi) however, no change in circumstances is likely to suffice unless it has been brought about by some form of unreasonable conduct on the part of the defendant which in all the circumstances provides a good reason for departing from the rule.”
    1. The further point which I bear in mind is that the hurdle to displace the default rule in CPR 38.6(1) is high. In Nelson’s Yard Management Co v Eziefula [2013] EWCA Civ 235, Beatson LJ underscored the high threshold for avoiding the usual costs consequences of a discontinuance and that, once there was to be no trial, it is not the function of the court considering costs to decide whether or not the claim would have succeeded.
    2. It is with this uncontentious summary of the guiding principles that I consider the points in issue in this case.
Discussion and Conclusions
a) The merits of the claim
    1. The central theme of Mr de Navarro’s submissions on costs is that the claim, however analysed, was always doomed to failure. I do not accept his submission. Having heard only a part of the evidence, I am unable to conclude that the claim was one which could never succeed. I accept that Mr Mylonas had an uphill struggle on his hands, not least because of the very tight timescale between the two “bookends” of the 4th May 2012 (when the TOE was performed) and the 5th October 2012 (the day of the Claimant’s stroke). He would have had to persuade me that the time interval from referral to Professor Hildick Smith and the consultation was towards the lower end of the 8 or 10 week interval and that the waiting time for the procedure was 12 weeks, rather than 3 calendar months, but I had yet to hear the full evidence on those points. As at the point of discontinuation, I still had an open mind on those points.
    2. I also do not accept Mr de Navarro’s gloomy prognostication that the claim was destined to fail because the only route to referral was via Dr Jones who had already offered a referral to Professor Hildick Smith, only for that offer to be declined. This analysis overlooks the contents of the joint statement of the two cardiologists, Dr Saltissi and Professor Ray, where they set out that “we are agreed that it was reasonable for Dr Jones to review Mr Harrap (following the TOE) and to express his personal opinion on the management of his PFO. However, it was also agreed that irrespective of whether Dr Jones undertook the review, it was necessary that Professor Hildick Smith review Mr Harrap following the TOE“. Later in the joint report, when responding to the question of whether it was mandatory for Mr Harrap to be seen by Professor Hildick Smith after the TOE result was available, Dr Saltissi responded by saying that he did think it was mandatory; Professor Ray considered that, whilst it was not mandatory, “it would have been good practice for Mr Harrap to have been reviewed by Professor Hildick Smith if it is accepted that Dr Jones’s notes document that he had discussed referral for PFO closure and that Mr Harrap had declined“. Recognising the potential tension between the two statements, there was, at very least, a reasonable case for arguing that, irrespective of Dr Jones’ involvement and his discussion with the Claimant on 22nd May 2012, the Claimant should have been reviewed, additionally, by Professor Hildick Smith.
    3. I also bear in mind that the fact that a claim may have always been doomed to failure may be a relevant ingredient militating against displacement of the general rule in CPR 38.6 (see the Waksman principles, at number (3)). However, in the absence of my having formed the view that it was plain that the claim would have failed, a merits assessment should not form part of the discretion exercise which I must perform (see Beatson LJ in Nelson’s Yard Management), particularly when I am ill-equipped to make that assessment having heard only part of the evidence which would have been deployed but for the discontinuance. I therefore place to one side, Mr de Navarro’s submissions in connection with the merits of the claim.
b) Change of circumstances
    1. Before the presumption is displaced, it is clear that I must find that there has been a change of circumstances (and if so, separately, that I find that it is due to the unreasonable conduct of the Defendant, see below) to which the Claimant has not contributed. I find that there has been a change of circumstances as a consequence of the new evidence which was elicited at trial. The new evidence had a direct bearing upon the Claimant’s case and its effect was to shut down the claim on factual causation. Mr Mylonas found himself confronting a new factual scenario in respect of which he had no effective means of challenge. The time interval stated by Professor Hildick Smith of two weeks for his obtaining the records was unassailable given the explanation that the cardiology and general medical units were on two sites and the absence of any centralised computer storage of records. I accept Mr Mylonas’ argument therefore that the effect of the new evidence was that there was a change in circumstances and, as he put it in his submissions on costs, his case was as a result “holed beneath the waterline”.
    2. Nor do I find that the Claimant or his team contributed to the change in circumstances. Mr Mylonas no doubt, in the absence of any evidence to the contrary, considered he was on safe ground in putting to Professor Hildick Smith that he should have personally reviewed the TOE report. I do not therefore accept Mr de Navarro’s submission that the fact that the new evidence was elicited in cross examination supports the application of the CPR 38.6 presumption.
b) Unreasonable conduct on the part of the defendant
  1. Mr Mylonas submits that his case on the mechanism for referral was clear from his pleadings. I do not accept this, see paragraph 6(a) above. His pleading was ambiguous. However, I also find that any ambiguity in his case was dispelled by the time of service of Dr Saltissi’s report of December 2017. That report made absolutely clear that the alleged failure to refer was levelled at the cardiology team of Professor Hildick Smith, rather than at Dr Jones and his team (see paragraph 9.5 and paragraph 9.7 of that report). Dr Saltissi set out that “there was a failure by the cardiology team to follow up the atrial abnormalities found on the echo and TOE” and “the only area of substandard care and hence of breach of duty was displayed by Professor Hildick Smith’s team in failing to follow up the abnormal echos appropriately“.
  2. Following service of this report, it was incumbent upon the Defendant to review the claim. Even if, up to that point, Professor Hildick Smith’s request for the notes and the Claimant’s loss to follow up, were not considered by the Defendant to be relevant, those facts had become highly relevant following Dr Saltissi’s December 2017 report. A further statement amplifying Professor Hildick Smith’s involvement in the Claimant’s case should have been served at the latest following the Saltissi report together with an amended pleading. If, alternatively, Professor Hildick Smith’s further involvement following his consideration of the TOE on 6th May 2012 was not known to the Defendant, then I accept Mr Mylonas’ submission that it should and would have been had the witness been adequately proofed. I accept Mr Mylonas’ submission that, by oversight, salient details were omitted from the witness evidence. This failure to set out the full story was unreasonable. I note that no explanation for the absence of this evidence has been provided by the Defendant at any stage.
  3. For these reasons, I therefore conclude that, on the unusual facts of this claim, the default position that, following discontinuance, the claimant should bear the entirety of the defendant’s costs should be displaced. I accept that the threshold for rebutting the presumption in CPR 38.6 is high, but I find that the threshold has been reached in this case.
  4. However, I make two modifications to the order which is sought by Mr Mylonas.
  5. First, given that his case was clarified by the report of Dr Saltissi dated December 2017, I order that the Claimant should bear the costs in the usual way up to the date of service of that report (rather than from the date of exchange of witness evidence as advanced by Mr Mylonas).
  6. Secondly, the order which I make from the date of service of the Saltissi report is one of no order for costs. Both parties accept that I have a broad discretion as to the appropriate and fair costs order. In his brief oral submissions in the wake of his discontinuance Mr Mylonas contended that, in the alternative to his recovering his costs from the date of exchange of witness statements, I should make no order as to the costs from that date. In my judgment, this is the appropriate and fair order to make in all the circumstances. The Claimant could have made a request for further particulars to clarify when Professor Hildick Smith annotated the TOE report with “Notes please.” Although it may have been assumed by the Claimant’s team that the annotation was made later in the Claimant’s history, it was open to the Claimant’s team to seek further clarification on the point and this would have been the only safe course. In these circumstances, the fair order is that each party should bear its own costs from the date of service of Dr Saltissi’s report.
  7. I therefore order that the Claimant bears the costs up to the date of service of Dr Saltissi’s report of December 2017 and that thereafter there is no order for costs. I invite the parties to draw up the appropriate Order giving effect to this ruling.
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