A district judge has made a costs order in favour a claimant who discontinued her occupier’s liability claim against a hospital, because the defendant NHS trust “drip-fed” documents that should have been disclosed up front under the pre-action protocol.
District Judge Swindley in Bolton described the defendant’s behaviour in Chapman v Tameside Hospital NHS Foundation Trust as “entirely unacceptable”.
The trust initially said it had no documents to disclose but as the claim proceeded did produce some at various times.
The claimant alleged that she slipped on a leaflet on the floor of the trust’s A&E department – “quite probably a solicitor’s leaflet advertising their services”, the judge said wryly.
DJ Swindley said that with claimant solicitors in such cases working on fixed costs “which are not be any stretch of the imagination generous”, there was a danger that defendants and their representatives “will cause difficulties in the course of litigation, so as to run up the work which claimant’s solicitors are having to do in the knowledge that those solicitors cannot recover costs reflecting that work”.
However, he emphasised that he was not saying that this is what happened in this case.
But DJ Swindley ruled: “I am satisfied on the balance of probabilities that had the NHS Litigation Authority produced under the pre-action protocol the documentation which they should have produced… then the claim would not have gone any further. There clearly was misconduct on the part of the defendant.”
Though it was not clear whether this was on the part of the trust or the authority, the judge said it would be a “nonsensical situation” if the rules of fixed-costs cases precluded the court from imposing sanctions using its discretion as to costs in CPR 44.2 when conduct is an issue.
“I do not accept that I am bound by the part 45 scales, but I clearly have to bear them in mind. It would be nonsensical if the claimant’s solicitors could achieve a windfall and recover more costs than they would have done had the matter gone to trial or settled in favour of the claimant at the stage it was discontinued.”
He accepted the claimant’s suggested approach of setting off what she would have been awarded as base costs had she been successful – £3,700 – against £950, or what she would have received had she discontinued after being supplied by the appropriate documentation by the defendant.
DJ Swindley said: “I am satisfied that this is an appropriate way of dealing with the matter.” With the costs of an expert report and VAT, the claimant was awarded £3,924.