Amanda Welsh v Walsall Healthcare NHS Trust [2018] EWHC 2491 (QB)

Judgment on costs 28th September 2018

This is a High Court decision dealing with costs. The claimant, Amanda Welsh, had successfully pursued a clinical negligence personal injury claim against the defendant NHS Trust. The normal cost rule is that the defendant would be liable to pay the successful claimant’s legal costs. The Court does have however overall discretion on the question of costs and the defendants argued that they should not have to pay all of the claimant’s costs because she did not succeed on all aspects of her claim. One allegation was withdrawn by the claimant at trial and the claimant did not succeed at all on an allegation of lack of consent for the medical treatment that she had. The defendants suggested that the consent issue occupied two days of the total trial length. The Judge had considered during the trial as far as the consent allegation was concerned a lot of time was being spent on an issue that was taking the claimant’s case nowhere and in reality was distracting from the real issues in the case. It was not simply that the claimant lost this issue but rather that it was not reasonable for her to maintain it through to trial. The consent allegations did not in any event have a significant impact on the monetary value of the claim.

In the case of Fox v Foundation Piling [2011] EWCA Civ 790, Jackson LJ had remarked that there “has been a growing and unwelcome tendency by first instance courts and, dare I say it, this court as well to depart from the starting point set out in rule 44.3 (2) (a) too far and too often. Such an approach may strive for perfect justice in the individual case, but at huge additional cost to the parties and at huge costs to other litigants because of the uncertainty which such an approach generates. This unwelcome trend now manifests itself in a (a) numerous first instance hearings in which the only issue is costs and (b) a swarm of appeals to the Court of Appeal about costs…”

In Amanda Welsh’s case the Judge said that overall it is clear that the claimant was the undisputed winner in the litigation. However the costs associated with the consent issue need to be specifically considered. The Judge had concluded that it was not reasonable to persist with the consent allegations. Having said that, it was of course possible for the defendant to have protected itself with a monetary or part 36 offer. The defendant suggested that approximately 30% of its costs had related to the consent allegations. The Judge was persuaded that the claimant should bear some responsibility for the costs of pursuing the consent issue and weighing up all the circumstances the appropriate order is for the defendant to pay 85% of the claimant’s costs. The Judge said that this was not a precise mathematical analysis but a view arrived at after taking all of the circumstances of the case into account.