Cutting v Islam [2014] EWHC 1515 (QB)

2014] EWHC 1515 (QB)Case No TLO/13/0309
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of JusticeDate 14/05/2014
Strand. London. WC2A 2LL
Before
MRS JUSTICE PATTERSON
Between
MELISSA CUTTINGClaimantDR ASIM ISLAMDefendant
Sarah Lambert (instructed by Gadsby Wicks) for ClaimantClaire Toogood (instructed by Berrymans Lace Mawer) for DefendantHearing Hearing date: 6th May 2014
Judgment

Introduction

[1]On the 17th March 2014 I handed down judgment on liability and invited submissions on the final order and costs.[2]I found that a proportion of Mrs Cutting’s allegations of negligence against Dr Islam were proved and were causative of her husband, Mr Goodhead, not receiving earlier treatment for his colorectal cancer. The consequence of that omission was that such treatment, on the balance of probability, would have extended Mr Goodhead’s life by a period of some four months until May 2009.[3]At trial the claim was put on two bases. First, that the negligence on the part of Dr Islam caused Mr Goodhead to miss out on treatment that would have been administered with an earlier diagnosis which would have resulted in a complete cure of his cancer. Secondly, that the breach of duty on the part of Dr Islam caused Mr Goodhead to miss out on a complete package of treatment which would have been administered with an earlier diagnosis and would have prolonged his life.[4]Had there been a complete cure for Mr Goodhead the claim was valued by the claimant at £1.5 million. The extent of any prolongation of life was left to the court to determine. Upon that determination damages have been agreed at £50,000.[5]The second basis of claim was made following a re-amendment of the Particulars of Claim which I allowed on the first day of the trial. The reasons for that are set out in the substantive judgment on liability.[6]Issues have remained unresolved between the parties in relation to costs and an amendment that I made to the draft judgment in response to a suggestion by the defendant because of the implications of that paragraph for a costs hearing. Further, in reviewing the judgment handed down I spotted what appeared to be a further typographical error that required correction.[7]In this judgment I deal with the costs arguments first. To understand that it is necessary to go into the chronology of procedural events leading up to the handing down of the judgment on liability and causation which I now do. I then deal with the remaining outstanding matters.

The Facts

[8]The claim form was issued on the 3rd January 2012 alleging negligence on the part of the defendant in the treatment of Mr Goodhead at his surgery on the 6th April 2005. Damages were claimed on behalf of the claimant and Mr Goodhead’s estate.[9]On the 3rd August 2012 Particulars of Claim were served. The particulars of negligence included allegations that the defendant failed to advise Mr Goodhead to return for a review if his symptoms persisted, and that he lost Mr Goodhead the opportunity to obtain a timely diagnosis. On causation it was accepted that Mr Goodhead would not have survived his cancer but contended that with a diagnosis in 2005 Mr Goodhead would have survived for a period of 6 years and, therefore, would have had a prolongation of life for a further 2-2 ½ years beyond the time of his sad death in January 2009.[10]On the 12th November 2012 the defence was served. That denied breach of duty. The defence averred that the progression of Mr Goodhead’s disease would have been similar to that which occurred in any event and that he would have developed peritoneal metastasis and ascites and would have died of his disease in January 2009.[11]On the same day the defendant’s solicitors wrote to the solicitors acting for the claimant inviting them to discontinue their case against the defendant. They contended that even if earlier referral to a consultant had taken place there would have been no extended life expectancy for Mr Goodhead. The letter enclosed a report from Professor Price dated 20 September 2012 on causation on a without prejudice basis.[12]On the 14th November 2012 Mr Wicks of the claimant’s solicitors spoke to Ms Swanton at the defendant’s firm and indicated that it was unlikely that the claimant would be discontinuing. The parties agreed that the proceedings would be stayed and the position reviewed after the claimants had received further expert advice on Professor Price’s report. At that stage a decision would be made as to the way forward.[13]On the 3rd December 2012 the claimant wrote to the defendant informing them that the Particulars of Claim needed amending based upon an expert report they had received from Professor Stebbing who they had instructed on oncological matters.[14]On the 7th of January 2013 the defendant sought an early discussion between the experts on oncology.[15]On the 12th February 2013 an amended Particulars of Claim was served. In that, the particulars of negligence remained as before but amendments were made in relation to causation. It was said that in 2005 the claimant did not have metastatic disease. On the balance of probabilities in May 2005 Mr Goodhead had a polyp or early primary rectal tumour. With chemo-radiotherapy and/or surgical resection he would have survived his cancer. All allegations about prolongation of life were deleted.[16]At the case management hearing on the same day the parties agreed that the claimant was to have permission to amend the Particulars of Claim and agreed a timetable for the service of an Amended Defence together with directions for the progress of the case.[17]On the 5th March 2013 witness statements were exchanged. On the 6th March 2013 the Amended Defence was served. Breach of duty was denied as was causation. It was averred, on the balance of probabilities, that Mr Goodhead had metastatic disease in both his liver and bone in May 2005. The metastasis may not have been visible on imaging. It was contended that Mr Goodhead had a primary rectal tumour which was present in May 2005. It was denied that surgical intervention would have been curative as the metastasis was too widespread.[18]On the 22nd April 2013 the defendant served the medical reports upon which it would be relying, namely, from Dr Norfolk, the general practitioner, from Professor Scholefield, the colorectal surgeon, and Professor Price, the oncologist. They were disclosed on a without prejudice basis. The claimant was invited to discontinue against Dr Islam and meet the defendant’s costs in the sum of £10,000.[19]On the 11th June 2013 the claimant served its expert evidence from Dr Shutkever, general practitioner, Mr Antrum, colorectal surgeon and Professor Stebbing. The latter commented on the report of Professor Price.[20]On the 12th June 2013 a case management conference took place. The claimant obtained permission for a forensic accountant on the basis that the claim was worth about £1.4 million.[21]On the 26th June 2013 the claimant served a schedule of loss totalling £1,455,811 excluding general damages together with the report bf a forensic accountant.[22]On the 30th August 2013 the defendant served a counter schedule totalling £961,631 together with the report of a forensic accountant.[23]On the 23rd November 2013 the oncologists agreed a joint statement. They agreed there would have been microscopic metastatic disease present in May 2005.[24]A joint statement of the general practitioners was agreed on the 27th November. On the 8th December 2013 a joint statement was agreed between the colorectal surgeons.[25]On the 16th December 2013 the defendant served a supplemental report of Professor Price and suggested that the claimant discontinue the proceedings on the basis that she paid about 50% of the defendant’s costs. That was on the basis of Professor Stebbing’s concession in the joint statement that micro-metastasis were present in 2005. It was said that meant that the claimant could not succeed on her case that treatment would have been life saving.[26]On the 3rd January 2014 the claimant made a part 36 CPR offer that she would accept a sum equal to 65% of the total value of the claim to be agreed or assessed by the court on the basis that Mr Goodhead would have been cured of his cancer.[27]On the 6th January 2014 the defendant served a supplementary report from Professor Scholefield dated 19th December 2013.[28]On the 6th January 2014 there was a round table meeting at which the defendant offered a “drop hands” settlement.[29]On the 7th January 2014 the defendant rejected the part 36 offer made by the claimant and formalised its offer of discontinuance with no order as to costs. The defendant invited the service of any supplementary evidence as a matter of urgency and in any event by the 10th January.[30]On the 9th January 2014 the claimant served the supplementary report of Professor Stebbing.[31]On the 16th January 2014 the claimant offered to accept £250,000 plus costs.[32]On the 20th January 2014 the claimant served the first draft of the re-amended Particulars of Claim.[33]On the 21st January 2014 the claimant served a further supplementary report from Professor Stebbing dated 17th January.[34]On the 22nd January 2014 the defendant repeated the “drop hands” settlement offer.[35]On the 23rd January 2014 the claimant offered to accept £100,000 plus costs. Quantum was agreed at £1.25 million on full liability.[36]On the same day the defendant offered £100,000 inclusive of costs. Due to the email containing the offer arriving in the junk email box of junior counsel for the claimant the claimant remained unaware of the offer but has confirmed that had she been so aware the offer would have been rejected.[37]No further offers were made by either party.[38]On the 24th January 2014 a second draft of the re-amended Particulars of Claim was served together with the application to amend to that effect.[39]On the 27th January 2014 the trial commenced.

The Law

[40]CPR 44.2 provides that the court has discretion as to costs. Rule 44.2 (2) provides, “2) If the court decides to make an order about costs -(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but(b) the court may make a different order.” (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but (b) the court may make a different order.”[41]Rule 44.2 (4) and (5) read:
“4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including - (a) the conduct of all the parties; (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and (c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply. (5) The conduct of the parties includes - (d) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction - Pre-Action Conduct or any relevant preaction protocol; (e) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (f) the manner in which a party has pursued or defended its case or a particular allegation or issue; and (g) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.” (a) the conduct of all the parties; (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and (c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply. (d) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction - Pre-Action Conduct or any relevant preaction protocol; (e) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (f) the manner in which a party has pursued or defended its case or a particular allegation or issue; and (g) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.”
[42]It follows that the fundamental question is who is the successful party in this litigation? Who is the successful party? Claimant’s submissions

Who is the successful party?

[43]The claimant submits that she has succeeded in her claim. That she has only succeeded in part does not detract from her primary entitlement to costs recovery. The court should take as its starting point the general rule that a successful party is entitled to an order for costs in her favour.[44]Whilst the claimant has not been successful in establishing causation in respect of the long term survival of her deceased husband she has been successful in establishing and recovering substantial damages of £50,000 for 4 months loss of life. She succeeded also in establishing that the defendant’s care was sub-standard and cut short the deceased’s life.[45]The question of who is the successful party is determined by who ultimately writes the cheque: see Day v Day [2006] EWCA Civ 415 at [17].[46]The case of Fox v Foundation Piling Limited [2011] EWCA Civ 790 provides guidance for this sort of case where the claimant has not succeeded on every issue. The issue here was whether there was a breach of duty and, if so, what was the outcome? In relation to those issues the claimant had been successful. The reamendment of the Particulars of Claim formalised what had been considered by all of the experts. As a result no additional expense had been incurred because the experts had already considered the issue of prolongation of life.[47]No low value offer was made by the defendant at all prior to the 23rd January 2014. Up until then all the defendant had done was to suggest that the claimant discontinue the proceedings on a variety of terms. The offer on the 23rd January was the first that was made and would have left the claimant exposed to a large costs bill of her own.[48]No part 36 offer was ever made by the defendant. That could have been done on the basis of the report of Professor Scholefield or a Calderbank offer could have been made. The defendant chose to ignore the evidence of his surgical expert and rely entirely on the oncological opinion that delays in referral made no difference and death was inevitable on the same day. That was not a reasonable approach to litigation.[49]As such the defendant should lose the protection of the rules see Day (supra) at [20], “In my judgment the valuable use of payments into, court and Part 36 offers to settle place an onus, in the first place, on the defendant. He had the ability to pay his fallback position into court and he could, if he took the view, have done so, confident that his greedy mother backed by his horrible brother Kevin would not have taken that money but would have fought him to the bitter end for the whole of the proceeds of sale, but that was his means of protecting his position. He failed to avail it, and it seems to me that that loses him the protection of the rules.”[50]What the defendant now seeks to do is to be in a better position than if he had engaged in the proper way forward. Reliance is placed also upon Goodwin v Bennetts UK Limited [2008] EWCA Civ 1658 at [13], “The ultimate result of this litigation is that the claimant has succeeded on some of her heads of claim and has failed on others. The defendant could have protected itself by making an offer which would have exceeded the modest sum finally awarded by this court. The defendant did not make any offer of settlement — the claimant had to go to trial, indeed had to come to this court in order to recover any damages whatsoever. It is unsurprising and not unusual that the claimant did not succeed on all of her alleged breaches of duty or allegations of negligence. Looking at all the circumstances of this case, I do not consider that any discount should be made from the normal order for costs. Therefore I would order that the defendant do pay the claimant's costs of this action both below and of the appeal in this court and that such cost should be assessed on the standard basis if not agreed.”[51]In considering whether there should be any departure from the general rule that the defendant should pay the claimants costs the claimant has at all times conducted her claim in a reasonable manner. The defendant has not incurred any extra costs that can be attributed to the claimant’s conduct of the case over and above those which he would have incurred in any event as a direct result of his unreasonable approach to the central issue in the case.[52]Until the defendant served his defence with Professor Price’s report the claimant had brought her claim on a modest prolongation of life basis, namely, alleging an extension of 2 ½ years. It was because of the absolute denial on the part of the defendant that the claimant went on to instruct Professor Stebbing so that the case moved on and the allegation became one that a cure should have ensued if Mr Goodhead had been referred to a consultant in the spring of 2005. The amendment of the Particulars of Claim in the light of that report was a reasonable step to take.[53]Re-amendment has occasioned no further cost. The defendant’s case throughout has been that Mr Goodhead would have died on the same day, albeit undermined by a verbal concession by counsel for the defendant and by evidence from Professor Scholefield that Mr Goodhead would have enjoyed a modest prolongation of life. 54; The claim for prolongation of life did not take the defendant by surprise and was not a new claim. It was part of the initial claim.[55]The conduct of the defendant in pursuing the central causation assertion that Mr Goodhead would have died on the same day in any event was despite the knowledge that his own surgical expert was of a different view;, namely that, on the balance of probabilities, Mr Goodhead would have enjoyed a modest prolongation of life.[56]The claimant had made sensible offers to settle which were rejected by the defendant. The defendant was not entitled, having failed to use part 36, to seek to put himself in a better position than had the claimant failed to beat a part 36 offer made by him. In the absence of any appropriate or protective pre-trial offers by the defendant the claimant is properly entitled to all of her costs.

Defendant’s submissions

[57]The fact that the claimant is seeking 100% of her costs is very surprising and indicative of the way that the claimant has conducted litigation. A court’s order must reflect the realities which are that the claimant has recovered just over 3% of her claim.[58]The claimant did not bring this claim to prove that Mr Goodhead would have lived for a further 4 months. The initial case was brought on the advice of the treating oncologist, Dr Bridgewater, so that the Particulars of Claim were served with no independent expert evidence on causation.[59]Upon serving the defence together with the report of Professor Price the claimant obtained evidence from Professor Stebbing. From the end of 2012 the defendant requested expert discussion between Professor Price and Professor Stebbing. Professor Scholefield was not instructed until the beginning of 2013. The case of Medway Primary Care Trust v Marcus [2010] EWHC 2061 concerned a case where an award of £2000 was insignificant but was within the pleaded claim throughout. How to approach who is the successful party is set put in the judgment of Tomlinson LJ at [46]:
“46. The starting point of the enquiry is as all accept to identify the successful party. Although there have been many attempts to describe this surprisingly elusive process, no description is in my view better than that of Sir Thomas Bingham MR in Roache v Newsgroup Newspapers Ltd [1998] EMLR 161 :- "The judge must look closely at the facts of the particular case before him and ask: who, as a matter of substance and reality, has won? Has the plaintiff won anything of value which he could not have won without fighting the action through to a finish? Has the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?" ” "The judge must look closely at the facts of the particular case before him and ask: who, as a matter of substance and reality, has won? Has the plaintiff won anything of value which he could not have won without fighting the action through to a finish? Has the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?" ”
[60]The case of Fox (supra) is distinguishable as there was no issue as to who was the successful party to be determined. As Briggs J (as he then was) said in Magical Marking Limited v Ware & Kay LLP [2013] EWHC 636 at [14]:
“14. In my judgment the critical distinction between the Medway and Fox cases is that the former was, but the latter was not, about the question who ought to be regarded in the substance as the successful party. In deciding that question in the Medway case, the Court of Appeal followed the Roache case, as well as the closely analogous decision of the Court of Appeal in Oksuzoglu v Kay [1998] 2 All ER 631, in which Brooke LJ said, on analogous facts to the present: "In this line of cases, where the plaintiff only recovers between 1% and 3% of his original claim (sometimes, but not always, after a late amendment) the Court is entitled to ask itself: 'who was essentially the winning party?' It will not be distracted from making a just order as to costs by the absence of a payment into court which the plaintiff obviously would not have accepted." ” "In this line of cases, where the plaintiff only recovers between 1% and 3% of his original claim (sometimes, but not always, after a late amendment) the Court is entitled to ask itself: 'who was essentially the winning party?' It will not be distracted from making a just order as to costs by the absence of a payment into court which the plaintiff obviously would not have accepted." ”
[61]On the issue of late amendment Magical Marking sets out the legal position at [23] which says:
“Quite separately from the analysis of the question who was the successful party, it is well settled that where a late amendment is made which proves to be the sine qua non for the claimant's eventual success, the defendant is generally entitled to its costs incurred up until the making of that amendment see: Beoco Limited v Alfa Laval Co. Ltd.[1995] QB 137, per Stuart-Smith LJ at 154 and 156. Beoco was, incidentally, another example of the conclusion that the recovery of a trivial sum on account of a much larger claim did not make the claimant the successful party: see page 156.”
[62]That approach was endorsed in the case of Chadwick v Hollingsworth [2010] EWHC 2718 where Rix LJ cited Stuart-Smith LJ in Beoco (154B): “25 ... As to that, Stuart-Smith LJ said (at 154B): "As a general rule, where a plaintiff makes a late amendment as here, which substantially alters the case the defendant has to meet and without which the action will fail, the defendant is entitled to the costs of the action down to the date of the amendment. There may, of course, be special reasons why this general rule should not be applied. An example of this is to be found in Kaines (U.K) Ltd. v. Osterreichische Wdrrenhandelsgesellschaft (formerly C.G.L. Handelsgesellschaft m.b.H.) [1993] 2 Lloyds Rep. 1, 9, where the judge was satisfied that, even if the amendment had been made earlier, the action would have been vigorously resisted." 24. The questions therefore are(i) whether the appellant’s amendment "substantially alters the case the defendant has to meet" and(ii) whether without the amendment "the action will fail". I am prepared to assume that the appellant's amendment fulfilled the first condition, although I would observe that this case presented nothing like the situation in Beoco, where the amendment was put on a totally different ground. In the present case, the breaches of duty were much expanded, but the original case was preserved. However, would the appellant's action have failed without the amendment? Such a question is easily answered in a situation like Beoco where the original and amended pleas are entirely separate, the amendment is made at trial and the relevant costs order is made at the conclusion of trial; or in any case where, even if the amendment is made at a late stage before trial, the relevant costs order is made at the conclusion of trial. It can also be easily answered where the amending party accepts that he cannot succeed without his amendment, or where the court is capable of providing a summary answer before trial as to the viability of the unamended case.” "As a general rule, where a plaintiff makes a late amendment as here, which substantially alters the case the defendant has to meet and without which the action will fail, the defendant is entitled to the costs of the action down to the date of the amendment. There may, of course, be special reasons why this general rule should not be applied. An example of this is to be found in Kaines (U.K) Ltd. v. Osterreichische Wdrrenhandelsgesellschaft (formerly C.G.L. Handelsgesellschaft m.b.H.) [1993] 2 Lloyds Rep. 1, 9, where the judge was satisfied that, even if the amendment had been made earlier, the action would have been vigorously resisted."[63]The defendant contends that he was right in his assessment that the claimant’s case would fail prior to re-amendment of the Particulars of Claim. He is entitled to all of his costs up until the later re-amendment.[64]The claimant made no offers until 2014 and then only on the basis that the defendant was to pay all of the claimant’s costs.[65]The all-inclusive costs offer made on the 23rd January 2014 was an entirely reasonable approach and one that was approved in Walker Construction (UK) Ltd v Quayside Homes Ltd [2014] EWCA Civ 93. In particular at [91] when Gloster LJ accepted that a judge was entitled to look at the matter with the benefit of hindsight and in the knowledge that the party had made a very small recovery (in that case) on its counterclaim.

Discussion and conclusion

[66]At the heart of the claimant’s case was an allegation that there had been a breach of duty on the part of Dr Islam that was causative of a shortening of the life of Mr Goodhead. There was a real issue as to whether Mr Goodhead’s life had been shortened completely, or by how much, but the central dispute is as I have set out.[67]The defendant’s argument that they should be entitled to their costs up to the late amendment is reliant upon the general rule that a defendant is generally entitled to its costs incurred up to and until the making of a late amendment. As Stuart-Smith LI said in Beoco that general rule is in respect of a late amendment which substantially alters the case which the defendant has to meet and without which the action will fail. Even then there may be special reasons why the general rule should not be applied.[68]The first question is, then, whether the claimant’s re-amendment substantially altered the case that the defendant had to meet and whether, without the amendment, the action would have failed?[69]As Rix LJ observed in Chadwick and Hollingsworth the amendment in Beoco was to put the case on a totally different ground. That is not the case here. The re-amendment preserved the case on causation of loss of life and the allegations of breach of duty. What was changed was the resuscitation, as an alternative, of the case of prolongation of life. That was something which had been addressed by all of the relevant experts. It cannot be said, therefore, that the re-amendment was one which came within the general rule. It did not substantially alter the case being run by either party nor require any change to the way the case was put at trial.[70]Indeed, Professor Price was instructed in relation to the original allegations in the Particulars of Claim which alleged prolongation of life by a period of 2 ½ years. Her evidence was consistent and unchanged throughout, namely, that there would be no prolongation. That was the position that the defendant relied upon whether the case put by the claimant was on the basis of prolongation of life or that earlier referral would have been curative. The re-amendment that was made here was thus not entirely separate from the original case, indeed the converse.[71]Would the claim have failed without the amendment? In literal terms it would. But, for reasons set out, the prolongation claim raised almost identical issues to the amended claim that but for the negligence of Dr Islam a cure would have been achieved. The re-amended claim is not distinct from that. The point of difference was the date of death. Whilst that difference has clear financial implications in an award of general damages the issues involved clearly overlap.[72]The recovery by the claimant of just over 3% of her original claim clearly entitles the court to ask itself who essentially is the winning party. In looking at who, as a matter of substance and reality, has won I bear in mind that in a personal injury action the fact that the claimant has won on some issues and lost on others is not unusual. The claimant has succeeded in attaining an award of general damages which she could not have done without fighting the action through to the end. Until the 23rd January of 2014 the defendant had made no offer to the claimant whether as a part 36 offer or on a Calderbank basis or any basis other than to suggest that the Claimant discontinue her action.[73]By the 23rd January 2014 an inclusive offer in relation to general damages and costs made by the defendant did not have the same attraction that such an offer may have had earlier on in the proceedings when less costs had been incurred. Had she known about it, therefore, I do not think it was unreasonable on the part of the claimant to indicate that she would have rejected such an offer.[74]In answering the questions posed in Roache it is clear that the claimant has won an award of damages which she would not have won without fighting the action through to a finish. Further, although the defendant succeeded in defeating the claim on cure he did not succeed in denying the claimant the prize of damages as a result of his breach of duty. It follows, therefore, that the claimant in this case is the successful party.[75]The case of Marcus v Medway Primary Care Trust is different to the instant case in that the whole case was about the need for the respondent to undergo a leg amputation and he lost on causation. That is unlike the position here where the claimant has won both on breach of duty and on causation in relation to prolongation of life.[76]The case of Fox does not take the issue further. It became common ground during that appeal that the claimant ought to be regarded as the successful party.[77]The general rule, therefore, applies. The next question is whether the costs order in favour of the claimant should be reduced and, if so, by what proportion.[78]In determining that issue I have regard to CPR 44.2 (4) and (5).[79]The defendant did not take any advantage of part 36. The curious thing is that is notwithstanding the fact that it instructed Professor Scholefield early in 2013. From that time it was evident that he took a different view on prolongation of life to Professor Price. Whilst it is entirely for the defendant to make an assessment of the strength of its own case if it fails to take into account the divergence of view amongst its own experts and make an offer that reflects the stance of one of them it must bear those consequences. It is said that the divergence was not relevant until the claimant re- amended her claim to re-introduce prolongation of life. Had that been done earlier then an offer would have been made: an opportunity to make an offer was therefore lost. There is some force in that.[80]The only relevant offer drawn to the courts attention which was not under part 36 is that dated 23rd January which I have dealt with above.[81]There is no suggestion here that either party has unreasonably pursued any particular allegation or issue or that the claimant has in whole or in part exaggerated her claim.[82]There are two other matters then which I need, in my judgment, to take into account. First, whether any discount should be made in respect of the late amendment made by the claimant. Such a course of action is clearly undesirable so late in the proceedings. I do find it curious that the original contention as to prolongation of life was withdrawn completely until resuscitated in the re-amended Particulars of Claim. It may be that the necessity for the re-amendment was thrown into sharper focus as a result of the expert meetings and agreement but the re-amendment at the late stage had an impact on the costs incurred prior to the re-amendment as the defendant was defending a case with different financial implications. The scale of resources to be put towards a case of the re-amended value could be very different than those out to one that was based on a complete cure. In this case though for reasons set out whilst I accept there would have been some difference there was still a considerable amount of evidence in common in the two formulations of the claim.[83]Second, is the consideration of the overall commercial realities of the case. For the claimant to receive 100% of her costs for recovering 3% of her claim does not, in the circumstances of this case, seem to me to be justified.[84]Taking those matters into account, therefore, I apply a discount of 25% to the claimant’s costs to make allowance for those factors.

Other matters

[85]The first of the matters outstanding relates to an amendment to the draft judgment to take into account that the position on costs had not yet been argued. That arose as a result of a suggestion made by the defendant which was not copied to the claimant’s counsel on the draft judgment. With no adverse comment made by the claimant’s counsel on the suggestion, for now understandable reasons, I thought the observation made by the defendant, namely, that my comment could be seen as relevant to the costs issues which had still to be determined was justified and so made the amendment sought. In fact, as I have now dealt with all costs issues that matter is no longer live.[86]The second point arises from paragraph 91 of what was then the draft judgment. It is agreed by both parties now that there is a clear typographical error in the 3rd line of that paragraph which should read instead of "two possible rays of hope were that” “the ray of hope was that”. It is unfortunate that that error slipped through.

Conclusion

[87]For the reasons set out the claimant is the successful party who should have 75% of her costs paid by the defendant.

Cited in 3 later judgments