Judge: Lambert J
Citation:  EWHC 1063 (QB)
New factual evidence emerged mid-trial, during the cross examination of a witness for the Defendant which was fatally damaging to the Claimant’s case, to the extent that the Claimant discontinued. The court found that the change in circumstances was such that the normal costs consequences should be displaced and the Claimant should only be liable for the Defendant’s costs up to the date of the service of the Claimant’s expert report.
In a clinical negligence action, the Claimant’s case was fatally damaged by evidence which only emerged during cross-examination of one of the Defendant’s factual witnesses. The Claimant discontinued and an argument arose as to the costs consequences. The Court found that there had been a change of circumstances as a consequence of the new evidence, which had a direct bearing on the Claimant’s case. The Claimant had not contributed in any way to the change in circumstances. Accordingly, the Court found that the normal default position as to costs following discontinuance should be displaced. The Claimant was ordered to bear the costs up to the service of the Claimant’s Expert Report, rather than the date of exchange of witness evidence, which was earlier. Thereafter, the Court made no Order for Costs.