The general rule on costs is that “costs follow the event”, ie loser pays. However, there is a growing body of case law, mainly emanating from the Commercial Court, which suggests that in complex litigation the court should engage in a more detailed analysis. Where litigation is classified as complex and where the plaintiff who is successful overall is unsuccessful on one or more discrete claims, the court will consider the amount of time and expense (for example, expert evidence) which relates to those claims which were ultimately unsuccessful.
Costs of personal injuries proceedings have tended to follow the general rule. However, in the case of Wright v. HSE and Mater Miscordiae University Hospital Limited, the High Court limited the costs awarded to the plaintiff to 65% of her costs on the basis that, following a 21-day trial, she was successful in only one of her four claims.
The plaintiff made three distinct claims of negligent medical treatment relating to three separate periods she spent in hospital. She also made a fourth discrete claim for medical negligence regarding the actions of her surgeon.
The court considered two key questions:
- whether the proceedings could be classified as complex such as to warrant the court adopting a greater degree of scrutiny when addressing the costs issue; and
- who, for legal purposes, could be considered to be the ‘overall winner’ in the proceedings.
On the first question, the court noted that the vast majority of personal injury cases would not be classified as complex because they usually involve the consideration of one particular event (eg, a road traffic accident or an assault). In contrast, many cases before the Commercial Court would be classified as complex with the court making decisions on a number of discreet issues.
The court considered all four claims advanced by the plaintiff individually. In each case, the court noted that the negligence claim was separate and distinct from the others and each claim could well have been litigated by the plaintiff independently of the others. In this regard, the court classified each claim as discreet and the proceedings as complex.
On the second question, the court was satisfied that the plaintiff was the successful party overall, even though she had failed to succeed in three of her four claims. The court found that the plaintiff had established a right to damages in respect of a liability which the defendant had denied and this was what she had come to court to achieve.
The court was also influenced by the fact that, in recent years, clinical negligence litigation in general has become more complex owing to greater use of the discovery procedure and an increasing reliance on expert evidence as regards liability and causation. The court noted that the plaintiff retained three experts to advise on allegations of negligence and that the defendant did the same.
Costs are ultimately a matter of discretion for the judge and while the general rule remains that the loser pays, this case demonstrates the loser may have an opportunity to reduce their costs bill if the winner has lost on particular issues. The court will also consider the extent to which procedural protections were available to, and utilised by, defendants to dissuade plaintiffs from embarking on unsustainable or unmeritorious claims (eg, lodgements, tenders, Calderbank letters etc).