In this post Charles Robertshaw of 12KBW examines the recent decision of Lambert J in Duncan Harrap v Brighton & Sussex University Hospitals NHS Trust  EWHC 1063 (QB).
A successful defendant in a clinical negligence case was penalised in costs due to vital evidence being omitted from a witness statement and only elicited for the first time during cross-examination at trial. The new evidence was fatal to the claimant’s case and led to the claim being discontinued. The court considered that the very late emergence of the new evidence was due to unreasonable conduct on the part of the defendant and, accordingly, the defendant should only recover part of its costs.
In February 2012, the Claimant (“C”) suffered two suspected transient ischemic attacks (“TIAs”) and was recommended to undergo a bubble contrast echocardiogram which was carried out in April 2012. The results of the echocardiogram were reviewed by Professor Hildick Smith, a Consultant Cardiologist who was part of the cardiology team of the Defendant (“D”). Prof. Hildick Smith recommended C undergo a further transoesophageal echocardiogram (“TOE”).
On 4 May 2012, C underwent the TOE which showed the presence of a large patent foramen ovale (“PFO”). A PFO is an abnormal communication between the structures in the heart which can allow blood clots to pass through the heart and flow in to the blood stream and potentially the brain.
On 22 May 2012, C was reviewed by Dr Martin Jones (a consultant physician with an interest in stroke medicine). Dr Jones discussed the option of referring C for surgical treatment of the PFO by Prof. Hildick Smith. C declined surgical referral and drug therapy was commenced instead.
In the summer of 2012, C suffered further TIA-like attacks and was referred by his GP to a consultant neurologist who suggested that C was suffering from migrainous episodes not TIAs and recommended that C stop the drug therapy. Before doing so, C’s GP wrote to Prof. Hildick Smith to check that this was the correct course of action.
On 18 September 2012, Prof. Hildick Smith wrote to C’s GP recommending that C be considered for surgical closure of the PFO.
Unfortunately, on 5 October 2012, before the surgery could be carried out, C suffered a stroke resulting in motor and cognitive deficit forcing him the give up his job as a PE teacher and causing the breakdown of his marriage.
The trial judge, the Honourable Mrs Justice Lambert DBE, described the pleaded claim as “remarkable for its brevity”. The particulars of claim contained only one particular of breach as follows:
“The Defendants were negligent in that (a) they failed to arrange any/any proper review in the cardiac clinic following the transoesophageal echocardiogram.”
Lambert J noted that this pleading did not make clear whether the failure to arrange a review fell on the teams of Dr Jones or Prof. Hildick Smith.
However, the position was made clear following the service of the expert report of Dr Saltissi (C’s expert as to breach of duty) who opined that:
“the only area of substandard care and hence of breach of duty was displayed by Professor Hildick Smith’s team in failing to follow up the abnormal echos appropriately.”
As to medical causation, it was not in dispute but that surgical closure of the PFO would have avoided the stroke.
As to factual causation (i.e. the hypothetical timeline of events in the event of a cardiology review having been offered following the TOE) the Parties’ cardiology experts accepted that the reasonable waiting time for a consultation with Prof. Hildick Smith was either 8 weeks (per Dr Saltissi for C) or 10 weeks (per Professor Ray for D) and that, if a surgical closure was to be performed, the reasonable waiting time for the procedure would be 3 months from the time of booking.
So even on the Claimant’s best case (8 weeks for a consultation with Professor Hildick Smith and a three month wait for treatment) the Claimant’s timeline for surgical closure of the PFO before the stroke on 5th October was a tight one.
The new evidence
On the third day of trial, during cross-examination of Prof. Hildick Smith by C’s counsel, the Professor gave evidence that he had seen the results of the TOE two days after it had been performed and had requested C’s records (annotating the TOE report with the words “Notes please”).
For some reason, the notes were not provided to him and so the trail “went cold” and C was “lost to follow up” until his attention was once more directed to C by the GP’s letter which he responded to on 18 September 2012.
Professor Hildick Smith said that, but for the loss to follow up, he would have expected to have received the notes after about 2 weeks of his request; he said that it would take some time as the cardiology department was in a different hospital site from Dr Jones’ clinic and medical notes were not centralised in 2012. He said that once he had received the notes he would probably have then written to the C’s GP offering to review the Claimant. Prof. Hildick Smith estimated that, if it had all gone to plan, he would have written to C’s GP on around 27th May 2012. He would have then awaited a response and, if a referral was requested, only then would the 8 or 10 week waiting time have started.
This was all new evidence. Prof. Hildick Smith’s witness statement did not say anything about his reviewing the TOE, requesting C’s records or that C was lost to follow up.
The effect of the new evidence was to add several weeks to the time line so that, even if a proper review of C’s TOE had taken place promptly, surgery would not have taken place until well after 5 October 2012 (the date of C’s stroke).
Accordingly, C’s case was bound to fail on factual causation and C discontinued his claim.
Thereafter, C sought to avoid an order that he pay D’s costs of the claim.
Costs of Discontinuance
Pursuant to CPR r38.6(1) the usual order on discontinuance is that the claimant is liable for the costs which the defendant incurred up to the date on which the notice of discontinuance was served on the defendant.
The hurdle that a claimant must get over to displace the default rule in CPR 38.6(1) is high.
The guiding principles as to when the court may depart from the usual order are set out by Judge Waksman QC in Teasdale v HSBC Bank Plc  EWHC 612:
a) When a claimant discontinues the proceedings, there is a presumption by reason of CPR r38.6 that the defendant should recover his costs; the burden is on the claimant to show a good reason for departing from that position;
b) the fact that the claimant would or might well have succeeded at trial is not itself a sufficient reason for doing so;
c) however if it is plain that the claim would have failed, that is an additional factor in favour of applying the presumption;
d) the mere fact that the claimant’s decision to discontinue may have been motivated by practical, pragmatic or financial reasons as opposed to a lack of confidence in the merits of the case will not suffice to displace the presumption;
e) if the claimant is to succeed in displacing the presumption he will usually need to show a change of circumstances to which he himself has not contributed;
f) however, no change in circumstances is likely to suffice unless it has been brought about by some form of unreasonable conduct on the part of the defendant which in all the circumstances provides a good reason for departing from the rule.
The Decision on Costs
Lambert J took the view that, whilst C had a difficult case on factual causation (in particular proving that if the TOE had been properly reviewed, surgery would have taken place before C’s stroke), the claim was not always doomed to fail.
Having taken the view that it was not plain that C’s claim would fail, and having only heard part of the evidence prior to discontinuance, Lambert J took the view that any further assessment of the merits of the claim should not form part of the court’s discretion exercise.
The Judge was clear that the new evidence elicited by Prof. Hildick Smith amounted to a change of circumstances and, although the evidence emerged during cross-examination by C’s counsel, it could not be said that C had contributed to the change of circumstances.
Further, the new evidence had a devastating effect on C’s case in that it “shut down the claim on factual causation” and as a result C’s case had been “holed below the waterline”.
The Judge took the view that C’s case on breach of duty had been made clear by Dr Saltissi’s report served in December 2017 (which stated that the breach occurred when Prof. Hildick Smith’s team failed to follow up after the TOE). Following the service of this report, the fact that the Professor reviewed the TOE and requested C’s records was highly relevant and D should have served a further witness statement dealing with the issue as well as an updated pleading. Alternatively, if Prof. Hildick Smith’s review of the TOE was not known to D, it should and would have been had he been properly proofed.
In any event, the Judge found, the failure to provide the salient details in Prof. Hildick Smith’s evidence amounted to unreasonable conduct by D.
In the circumstances, the Judge found that it was appropriate to depart from the usual costs order on discontinuance. C was ordered to pay D’s costs up to the date of service of Dr Saltissi’s report (December 2017) only.
The Judge did not award C his costs after this date as she took the view that C could have requested further particulars from D as to when Prof. Hildick Smith annotated the TOE report with “Notes please” (where such annotation must have been clear from the disclosed TOE report). Accordingly the Judge awarded ‘no order as to costs’ from December 2017 onwards.
This case emphasises the need to reconsider whether disclosed evidence addresses the relevant disputed matters following a development in an opposing party’s allegations and to promptly take pro-active steps to address any deficiencies in the evidence.
Whilst on first reading it may appear somewhat harsh to penalise the parties for their respective failures in this case, it must be borne in mind that the case on breach of duty here was a very narrow one. Accordingly, it can be expected of the parties to give that issue particularly close attention.