In Champan -v- Tameside Hospital NHS Foundation Trust (unreported) 15 June 2015, (Bolton County Court), the defendant was ordered to pay the claimant’s costs in circumstances where she discontinued her case shortly before trial, thereby reversing the usual costs position.

The decision serves as a stark reminder of the significance of the Pre-Action Protocol (PAP) and the fact that the court may be willing to penalise parties in respect of non-compliance.

Background

The claimant alleged that she had slipped on a leaflet which was on the floor in the defendant’s A&E department and that she sustained injuries as a result. In response to the PAP letter of claim, the defendant denied liability and confirmed that it had no documents to disclose.

In light of the fact that the defendant had (ostensibly) fulfilled its pre-action disclosure obligations, the claimant commenced proceedings. Subsequently, the defendant served supportive documentary evidence demonstrating that it had a suitable system in place to ensure the safety of visitors and that said system was effective at the time of the claimant’s accident.

On the basis of the disclosure provided, the claimant discontinued her claim but sought to pursue the defendant for costs. It was her submission that she would not have incurred the cost of commencing proceedings had timeous disclosure been provided pursuant to the PAP.

Decision

District Judge Swindley accepted the claimant’s argument and found that the defendant’s response had encouraged her to commence litigation that she would otherwise not have pursued.

The judge was critical of the defendant’s conduct, describing it as ‘entirely unacceptable’ and contrary to the overriding objective pursuant to CPR 1.3. He noted that that this was not a failure by the defendant to address disclosure, rather a case of inaccurate disclosure (amounting to misconduct) as the defendant had made a false statement that it had no documents to disclose.

Notwithstanding the fact that this was a fixed costs case, the judge found that it was appropriate to exercise the ‘unqualified discretion’ afforded to him pursuant to CPR 44.2. The claimant was awarded costs in the sum of £2,840 (her total base legal costs of £3,790 less the pre-disclosure costs of £950) in addition to the cost of obtaining the medical report.

In line with the ‘cards on the table’ approach advocated by the Civil Procedure Rules, the parties are under a duty to set out their case and to carry out a detailed and thorough search to provide ‘documents in [their] possession which are material to the issues between the parties, and would be likely to be ordered to be disclosed by the Court.’

Although a first instance decision, this case serves to emphasise the importance of careful conduct throughout the pre-action period, with particular reference to disclosure. It also reiterates the importance of dealing with issues at an early stage with a view to avoiding litigation wherever possible.