Court of Appeal reverses trial judge’s decision on costs
The Court of Appeal has handed down its judgment on costs in a clinical negligence case which could cause considerable concerns to claimants who have been forced to proceed to trial where defendants have failed to make any attempt to agree issues or make any or reasonable offers. The defendants in the case of Sebastian Marcus v Medway Primary Care Trust & another succeeded in reversing the trial judge’s decision on costs, having previously been substantially successful at trial.
The claimant attended GP consultations complaining of symptoms including pain in his lower left leg. The symptoms were indicative of limb threatening ischaemia, requiring urgent assessment by a surgeon. An urgent referral was not however made.
The claimant was seen by the surgeons some weeks later, and efforts to save the limb were unsuccessful.
The claimant alleged negligence against two GPs with whom he had consulted, for failing to refer him urgently to the vascular surgeons.
Eventually both defendants admitted breach of duty but argued that even with timely referral the limb would not have been saved. Quantum was agreed at £525,000 subject to causation and trial therefore proceeded on that issue alone.
Regrettably the Judge preferred the defendants’ expert evidence and found that the limb was not capable of being saved from the outset. However, on the basis of an alternative case, the claimant was awarded damages of £2,000 to reflect additional pain, suffering and loss of amenity over a period of no more than 28 days delay in treatment.
The Judge awarded the claimant 50% of his costs which was funded by a conditional fee agreement and ATE insurance. The defendants appealed the costs order.
The appeal came before three Lord Justices, including Jackson LJ.
The Court of Appeal decided, Jackson LJ dissenting, that the defendants were the successful parties. The action was about the requirement for amputation. The award of £2,000 was insignificant in the context of the claim and was in truth a last minute addition to salvage something from an action that the claimant had lost. In this context, the failure to make a Part 36 offer was of no consequence and a technical triviality.
LJ Jackson could not agree with that assessment and considered this was a case in which there always was, on the pleadings, a fall back claim for pain and suffering consequent on the late diagnosis of the claimants ischaemia. He felt the defendants could and should have protected their position by making a Part 36 offer of modest damages, perhaps £2,000 or £3,000. He went on to say that the “blunt fact is that the claimant had a good claim for £2,000 and the defendants were refusing to pay anything. The only way the clamant could recover the £2,000 due to him was by issuing proceedings and pressing on until the defendants agreed or were compelled to pay (a) £2,000 damages and (b) costs assessed on the standard basis.”
He also felt that the case and others involving the effect of Part 36 offers had caused an unwelcome and unnecessary degree of uncertainty. We agree that this is an area of law where the parties need to know where they stand and understand the consequences of their actions. None the less he did agree that the judge at first instance was best placed to make an assessment as to the right level of adjustment given the claimant’s defeat on a very substantial issue in the case. Interestingly he felt the judge had been generous in allowing the claimant 50% of his costs. So despite his dissenting views perhaps he was not very far apart from them in reality. However he concluded his views by clearly expressing that the defendants had made no Part 36 offer in this case and in his own opinion they should accept the consequences and he would dismiss the appeal.
Unfortunately the other two Lord Justices did not appreciate LJ Jackson cost’s experience and the appeal was allowed. To add further insult to injury the trial judge’s costs order was substituted for an order that the claimant pay 75% of the defendants’ costs.
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