Another example of how the interests of justice influence the decision of the Court is Nicole Chapman v Tameside Hospital NHS Foundation Trust.

The claimant alleged that she had slipped and fallen while visiting the defendant NHS Trust’s A & E department. In response to the claimant’s Letter of Claim, the NHS Litigation Authority denied liability and said it had no documents to disclose. However, after proceedings were served the defendant disclosed a number of documents, leading to the claimant agreeing to discontinue her claim. Under such circumstances, the claimant will usually be ordered to pay the defendant’s costs, but the claimant argued that if the defendant had disclosed the relevant documents as required under the pre-action Protocol, she would probably not have issued proceedings and would not have incurred costs.

The Judge agreed with the claimant, stating that under the Pre-action Protocol the defendant was under a duty to set out its case and in particular was obliged to provide documents in its possession which were material to the issues and likely to be ordered to be disclosed by the court. The fact that the Defendant had said in response to the Letter of Claim that it had no documents was proved to be false by the subsequent document disclosure, and the judge was satisfied that if the documentation had been disclosed sooner, the claim would not have gone any further.

The judge thought that the defendant’s conduct was precisely the type that CPR rule 44.2 was designed to address (“If the court decides to make an order about costs the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but the court may make a different order”) and that the fixed costs regime did not alter this. In assessing the appropriate sum to award the claimant, the judge reasoned that under the fixed costs regime the claimant would have incurred base costs of £950 (the fixed costs allowed if the claim had settled before proceedings were issued) prior to issuing proceedings and had incurred fixed costs of £3,790 at the time of the discontinuance. The appropriate sum to award the claimant was therefore the difference between these two figures, plus VAT and disbursements.