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Paying the price for unreasonable conduct

In litigation the Civil Procedure Rules (the Court rules which govern civil cases) stipulate that if a Claimant discontinues his claim once proceedings have begun then he is liable to pay not only his own costs but also his opponent’s costs incurred up to the point of discontinuance. However, the High Court case of Harrap v Brighton & Sussex University Hospitals NHS Trust demonstrates how the Court can dis-apply this rule in certain circumstances.

In that case, the Claimant pursued a clinical negligence claim against the Defendant for its alleged failure to arrange a cardiology review. The Claimant claimed that had the review taken place then he would have undergone treatment which would have avoided the stroke from which he later suffered. The claim proceeded to trial. However, on the third day of the trial, the Claimant discontinued his claim following evidence from one of the Defendant’s factual witnesses during cross-examination. That evidence, which was fatal to the Claimant’s case, was not contained in the witness statement of that particular witness previously.

The Claimant accepted that he would have to pay the Defendant’s costs of the action as a result of the discontinuance of the claim but he contended that he should only be responsible for the costs up to the date of exchange of witness statements and thereafter the Defendant should pay his costs on the basis that had the Defendant disclosed that crucial piece of evidence at the appropriate stage then the Claimant would have discontinued his claim much earlier.

The Defendant however argued that the claim was always doomed to fail and that the Claimant should not be able to avoid the usual cost consequences of the discontinuance of the claim. The Defendant contended that the additional evidence provided by its witness did not amount to a change of circumstances which would justify the Court from departing from the general rule that the discontinuing Claimant should pay the Defendant’s costs of the action in its entirety.

However, the Judge did not accept the Defendant’s argument that the claim was always going to fail. Instead the Judge found that the new evidence amounted to a change of circumstances which was due to the unreasonable conduct of the Defendant. The Defendant had unreasonably failed to set out the full details of its case in the witness statement. Therefore the Judge departed from the general rule on costs and the Claimant was ordered to pay his own costs and the Defendant’s costs up to the date when the new evidence was disclosed and thereafter the Claimant was not liable to pay the Defendant’s costs.

This case is a salient reminder for those engaged in litigation that conduct is all important and that any conduct which is perceived as being unreasonable by the Court will be penalised.

 

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Luke Patel

Partner and Head of Dispute Resolution
Commercial Dispute Resolution
LPatel@LawBlacks.com
0113 227 9316
@LukeLawBlacks
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Luke Patel Blacks Solicitors LLP