Judge: Yip J
Citation:  EWHC 2491 (QB)
A Claimant who recovered damages for clinical negligence, was only entitled to 85% of their costs, where they had pursued a point which was no properly arguable to trial, which had occupied much of the court’s time.
In a clinical negligence action, the Claimant was awarded compensation, having suffered serious complications following surgery. The Defendant argued that the Court should take into account the fact that the Claimant had not succeeded on the issue of consent and some pre-operative issues which were withdrawn at trial. It was argued that the consent issue occupied two days of the trial and required six witnesses who would not otherwise have been needed. The Court held that the issue of consent had not been properly arguable and under Rule 44.2(5)(b), it had not been reasonable for the Claimant to maintain it through to trial. The Defendant, however, could have protected itself on costs as a whole by making a sufficient offer. The Defendant was ordered to pay 85% of the Claimant’s costs.