Neutral Citation Number: [2018] EWHC 1063  (QB)
Case No: TLQ17/0363
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 09/05/2018

Before :

THE HONOURABLE MRS JUSTICE LAMBERT DBE
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Between :

	Duncan Harrap	Claimant	
	
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	Brighton & Sussex University Hospitals NHS Trust 	Defendant	
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Michael Mylonas QC (instructed by Irwin Mitchell) for the Claimant
Michael de Navarro QC (instructed by Hempsons) for the Defendant

Hearing dates: 12th – 14th March 2018
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Judgment Approved (Costs)
MRS JUSTICE LAMBERT DBE : 
1.	In this action, the Claimant sought damages for clinical negligence arising from the Defendant’s failure to arrange a cardiology review following the discovery that he had a patent foramen ovale (an abnormal communication between the chambers of the heart).  The Claimant suffered a stroke in October 2012.  It was the Claimant’s case that, had he been reviewed by a cardiologist, he would have been advised upon, and elected to undergo, surgical closure of his patent foramen ovale and the stroke would have been avoided.
2.	The trial of this action came before me on 12th March 2018.  On day three of the trial, Mr Mylonas QC, Counsel for the Claimant, discontinued the action.  Having discontinued, Mr Mylonas accepts that the Claimant should bear the costs of the action, but only up to the date of exchange of witness statements.  He submits that, from that date, the Defendant should bear both sides’ costs as new evidence from one of the Defendant’s factual witnesses, Professor Hildick Smith, emerged for the first time during his cross examination at trial.  This new evidence was fatal to his case.  It amounted to a change of circumstances and, Mr Mylonas submits, provides a good reason for the Court to depart from the general default position that the discontinuing claimant should pay the defendant’s costs of the action in their entirety.  He argues that the change in circumstances was not of his making but due to the Defendant’s unreasonable conduct in failing to proof Professor Hildick Smith adequately and ensure that his witness statement covered the relevant areas.  
3.	Mr de Navarro QC, for the Defendant, submits that the usual costs order should follow the discontinuance and that the Claimant should pay the costs of the action in their entirety.  The claim was always doomed to failure for a host of reasons and the discontinuance only brought forward the inevitable defeat with associated costs consequences.  The Claimant should not therefore be permitted to avoid the inevitable payment of costs by relying on irrelevant evidence which emerged in cross examination. 
4.	This is my ruling on the competing costs arguments arising from the discontinuance.  For the purposes of the ruling, I have received submissions from Mr Mylonas (16th March 2018) and from Mr de Navarro (16th April 2018).  
Background
5.	The essential elements of the factual chronology underlying the claim can be set out succinctly.
a)	The Claimant, who was aged 37/38 years at the relevant time, suffered two suspected transient ischaemic attacks (“TIAs”) in February 2012.   He was reviewed by Dr Martin Jones, a consultant physician with an interest in stroke medicine, who recommended that the Claimant undergo a bubble contrast echocardiogram.  This procedure was performed by the Defendant’s cardiology team on 13th April 2012 at the Sussex Cardiac Centre.  The results of the investigation were reviewed by Professor Hildick Smith, Consultant Cardiologist, who then arranged for the Claimant to undergo a further investigation, a transoesophageal echocardiogram (“TOE”) which was performed on 4th May 2012.  The TOE demonstrated the presence of a large patent foramen ovale (“PFO”): an abnormal communication between structures in the heart which may permit a piece of blood clot to pass from one chamber of the heart to another and so flow into the blood stream to the brain.  
b)	Following the diagnosis of the PFO the Claimant was reviewed by Dr Jones on 22nd May 2012.  The possibility of surgical closure of the PFO was raised but the Claimant declined a referral to Professor Hildick Smith for further discussion of that possible course of action.
c)	During the course of the summer of 2012, the Claimant suffered a further TIA-like episode.  He was referred by his GP to a consultant neurologist, Dr Hughes.  Dr Hughes’ opinion was that the episodes were not TIAs but were likely to be migrainous episodes.  He recommended that the drug therapy which had been initiated by Dr Jones was stopped and the Claimant’s GP, Dr Kuhn, wrote to Professor Hildick Smith seeking confirmation that this was an appropriate course.  In his response to that letter, on 18th September 2012, Professor Hildick Smith noted “I am not quite sure why he was not seen in clinic following his transoesophageal echocardiogram which confirmed this finding, but certainly now we should arrange to see him in clinic to discuss the option of closure of his PFO”.  
d)	The Claimant suffered a stroke on 5th October 2012 causing motor and cognitive deficit.  His disabilities were not gross, although he has been forced to give up his job as a PE teacher and his marriage has also broken down, he told me, due to the stress caused by the stroke.
The Claim
6.	The Particulars of Claim set out the uncontroversial factual chronology.  The allegations of breach of duty are noteworthy for two reasons.  
a)	First, as Mr Mylonas willingly accepts, the Claimant’s case on breach is remarkable for its brevity.  Paragraph 23 sets out, under the heading, Particulars of Breach, a single allegation: “The Defendants were negligent in that (a) they failed to arrange any/any proper review in the cardiac clinic following the transoesophageal echocardiogram.”  The single allegation does not make clear whether the alleged failure rests with Dr Jones or his team (the stroke team) in failing to make the referral to Professor Hildick Smith, or whether the alleged failure lies with Professor Hildick Smith and his team (the cardiology team) in failing to arrange for review.  Either (or both) team could be at fault on the face of the Particulars of Claim.  I will return to this point later when I discuss the merits of the Claimant’s application.  
b)	Second, no allegation of breach of duty is levelled against Dr Jones in connection with his clinic review of 22nd May 2012.  I heard evidence from both the Claimant and Dr Jones at trial and it was clear that, although it was agreed that a surgical closure was raised by Dr Jones as a possibility, and that the Claimant accepted that he had probably been offered a referral to a cardiologist, there were a number of  aspects of the discussion which were controversial, in particular, concerning the information which Dr Jones provided about the procedure and the Claimant’s attitude to heart surgery generally.  However, it was not asserted in the Particulars of Negligence that the advice given by Dr Jones was not Montgomery compliant. 
7.	On medical causation, by the date of trial, it was not in dispute but that surgical closure of the PFO would have avoided the stroke.  As to factual causation (that is, the hypothetical timeline of events in the event of a cardiology review having been offered) the cardiology experts accepted that the reasonable waiting time for a consultation with Professor Hildick Smith was either 8 weeks (per Dr Saltissi for the Claimant) or 10 weeks (per Professor Ray for the Defendant) and that, if a surgical closure was to be performed, then the reasonable waiting time for the procedure would be 3 months from the time of booking.  I pause to note that, given the “bookends” for surgical intervention  were 4th May (the date of the TOE) and 5th October (the date of the stroke), 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.  
8.	The Defendant’s case on liability placed heavy reliance upon the absence of any allegation of negligence against Dr Jones in respect of his consultation with the Claimant of 22nd May 2012.   It was Dr Jones’ evidence that, on 22nd May 2012, the Claimant had been offered but had declined a referral to Professor Hildick Smith.  In the absence of an allegation that the consultation with Dr Jones was in some way not Montgomery compliant, Mr de Navarro submitted in his skeleton argument for trial that there was no indication to offer another cardiology referral.  Further, even if the Claimant had been seen by Professor Hildick Smith, it would not have followed that the Claimant would have elected to undergo surgical closure: Professor Hildick Smith would have advanced the pros and cons of the procedure in a neutral way but would not have gone so far as to actively recommend the procedure.  Finally, even if the Claimant had elected to undergo the procedure, the Defendant contended that it would have been unlikely that the procedure would have been performed before the Claimant’s stroke on 5th October 2012.  
The Evidence at Trial
9.	I heard evidence from the Claimant, from Dr Jones, from Professor Hildick Smith and from the Claimant’s expert cardiologist, Dr Saltissi.  Neither the Claimant’s evidence, nor that of Dr Jones contained any surprises.  The new evidence which emerged at trial was elicited by Mr Mylonas during his cross examination of Professor Hildick Smith when he put to the witness that the TOE results should have come back to him for review.  In response, Professor Hildick Smith gave evidence that he had, in fact, seen the results of the Claimant’s TOE shortly after the procedure was performed.  He said that he thought that the test results had come across his desk on or around 6th May (2 days after the procedure) and that he had, at that time, requested the patient records.  He had annotated the report of the TOE, with the words “Notes Please” at that time, that is, on or around 6th May 2012.   He told Mr Mylonas that, for some reason, the notes were not provided to him and so the trail “went cold” and the Claimant was “lost to follow up” until his attention was once more directed to the Claimant by Dr Kuhn’s letter (to which he responded on 18th September 2012).  Having elicited this evidence Mr Mylonas was bound to follow it up.  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 Claimant’s GP and Dr Jones offering to review the Claimant.  Putting it all together, his best assessment was that if it had all gone to plan, he would have been writing to the Claimant’s GP and to Dr Jones on around 27th May 2012.  He would have then awaited a response from Dr Jones and, if Dr Jones had requested a referral, only then would the 8 or 10 week waiting time have started.  
10.	This evidence was wholly new.  It did not feature in the witness statement which had been signed by Professor Hildick Smith and served on the Claimant.  This witness statement which was dated 26th July 2017 set out Professor Hildick Smith’s involvement in the Claimant’s treatment at paragraph 8 as follows: “I did not meet the Claimant but I reviewed the results of the bubble contrast echocardiogram which he underwent on 13th April 2012.  I wrote to the Claimant’s GP the same day to confirm the results of the contrast, this being a large right to left shunt on provocation.  I arranged for the Claimant to undergo a transoesophageal echocardiogram to confirm the anatomy of the shunt.  I did not meet the Claimant at any point”.  Professor Hildick Smith then set out the exchange of correspondence between Dr Kuhn and himself concerning the possibility of the Claimant stopping the medication which had been prescribed.  At paragraph 12 of his witness statement he addressed the Claimant’s allegation that the Claimant should have been reviewed by the cardiology team following the TOE.  He there set out the timescales within which a cardiology consultation would have taken place and the waiting time for surgery on the assumption that the referral had been made, as was the routine practice, by the physician who requested the investigation.  At no stage in his witness statement did Professor Hildick Smith suggest that he had in fact reviewed the results of the TOE personally and that he had then requested the notes with a view to offering the Claimant a referral. Nor did he acknowledge that the Claimant had, on his own assessment, been “lost to follow up”.  
Submissions on Costs
11.	Mr Mylonas submits that the new evidence was fatal to the Claimant’s case on factual causation.  He submits that it has always been his case that the review should have been initiated by the cardiology team triggered by a review of the TOE report.  The effect of Professor Hildick Smith’s evidence during trial was to add several weeks to his timeline: two weeks for the receipt of the medical records, a further week for the preparation and sending of the letter from Professor Hildick Smith to Dr Jones and then a further interval for Dr Jones to consider the letter and respond.  Given the expert agreement that a period of either 8 or 10 weeks was the reasonable waiting list norm for cardiology review coupled with a further 3 months’ wait for the procedure, the timeline to surgery which was generated by Professor Hildick Smith’s evidence was extended well beyond the stroke on 5th October 2012.  
12.	Mr Mylonas argues that the change in circumstances was due to the conduct of the Defendant in failing to set out in the witness statement of Professor Hildick Smith a comprehensive account of his involvement with the Claimant.  There is no reference to his actual review of the TOE report on 6th May and his intention that he should obtain the records and offer a referral.  Instead, Professor Hildick Smith focuses only upon what he described as the “routine” referral route which would have been initiated by Dr Jones, had Dr Jones considered it appropriate.  Mr Mylonas also draws my attention to the robust denial by the Defendant that any review should have been initiated by the cardiology team.  Mr Mylonas submits that this approach continued to the door of court and drew my attention to the Defendant’s opening note which set out; “the system in place at the time appears to have been that, following a TOE, the case would be reviewed by the referring physician and if such physician considered a further referral to a cardiologist was necessary he would make that referral”.  Mr Mylonas argues that, whether by design or accident, the witness evidence served on the Defendant’s behalf and the Defendant’s case as a whole failed to set out the full story.  
13.	The Defendant’s position is that the normal order for costs should apply.  Mr de Navarro rejects the contention that there has been a change in circumstances, suggesting that the Claimant’s position on costs is, whilst ingenious, merely a smokescreen to avoid the inevitable costs consequences of a trial which was doomed to failure from the outset.  The Claimant’s case on costs, like his case on liability, proceeds he argues on a false basis: namely that there was any obligation upon Professor Hildick Smith to offer a review.  This was, he contends, never the Defendant’s case.  The Defendant’s case was always clear, namely, that as the treating clinician and the person who initiated the investigations, the decision on referral rested in Dr Jones’ hands.  Mr de Navarro submitted this was accepted implicitly by Professor Hildick Smith whose evidence at trial was that he should not “wade in” and instigate the consultation himself but rather write to Dr Jones with the offer of a review.  Mr de Navarro argued that, having embarked on trying to build an alternative but flawed case on referral in cross examination, the Claimant should bear the costs in the usual way.  
Legal Framework
14.	There is no disagreement on the legal principles which I should apply in considering the costs position between the parties.  The starting point is CPR 38.6(1) which provides that “Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant, against whom the claimant discontinues, incurred on or before the date on which the notice of discontinuance was served on the defendant”.  Thereafter the parties agree that the guiding principles to be drawn from the authorities were set out by Judge Waksman QC in Teasdale v HSBC Bank Plc [2010] EWHC 612, as approved by Moore Bick LJ in one of the Teasdale appeals in Erica Brookes v HSBC Bank [2011] EWCA Civ 354:
“i)		When a claimant discontinues the proceedings, there is a presumption by reason of CPR 38.6 that the defendant should recover his costs; the burden is on the claimant to show a good reason for departing from that position;
ii)		the fact that the claimant would or might well have succeeded at trial is not itself a sufficient reason for doing so;
iii)	however if it is plain that the claim would have failed, that is an additional factor in favour of applying the presumption;
iv)	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
v)		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;
vi)	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.”
15.	The further point which I bear in mind is that the hurdle to displace the default rule in CPR 38.6(1) is high.  In Nelson’s Yard Management Co v Eziefula [2013] EWCA Civ 235, Beatson LJ underscored the high threshold for avoiding the usual costs consequences of a discontinuance and that, once there was to be no trial, it is not the function of the court considering costs to decide whether or not the claim would have succeeded.
16.	It is with this uncontentious summary of the guiding principles that I consider the points in issue in this case.
Discussion and Conclusions

a)	The merits of the claim
17.	The central theme of Mr de Navarro’s submissions on costs is that the claim, however analysed, was always doomed to failure.  I do not accept his submission.  Having heard only a part of the evidence, I am unable to conclude that the claim was one which could never succeed.  I accept that Mr Mylonas had an uphill struggle on his hands, not least because of the very tight timescale between the two “bookends” of the 4th May 2012 (when the TOE was performed) and the 5th October 2012 (the day of the Claimant’s stroke).  He would have had to persuade me that the time interval from referral to Professor Hildick Smith and the consultation was towards the lower end of the 8 or 10 week interval and that the waiting time for the procedure was 12 weeks, rather than 3 calendar months, but I had yet to hear the full evidence on those points.  As at the point of discontinuation, I still had an open mind on those points.  
18.	I also do not accept Mr de Navarro’s gloomy prognostication that the claim was destined to fail because the only route to referral was via Dr Jones who had already offered a referral to Professor Hildick Smith, only for that offer to be declined.  This analysis overlooks the contents of the joint statement of the two cardiologists, Dr Saltissi and Professor Ray, where they set out that “we are agreed that it was reasonable for Dr Jones to review Mr Harrap (following the TOE) and to express his personal opinion on the management of his PFO.  However, it was also agreed that irrespective of whether Dr Jones undertook the review, it was necessary that Professor Hildick Smith review Mr Harrap following the TOE”.  Later in the joint report, when responding to the question of whether it was mandatory for Mr Harrap to be seen by Professor Hildick Smith after the TOE result was available, Dr Saltissi responded by saying that he did think it was mandatory; Professor Ray considered that, whilst it was not mandatory, “it would have been good practice for Mr Harrap to have been reviewed by Professor Hildick Smith if it is accepted that Dr Jones’s notes document that he had discussed referral for PFO closure and that Mr Harrap had declined”.  Recognising the potential tension between the two statements, there was, at very least, a reasonable case for arguing that, irrespective of Dr Jones’ involvement and his discussion with the Claimant on 22nd May 2012, the Claimant should have been reviewed, additionally, by Professor Hildick Smith.
19.	I also bear in mind that the fact that a claim may have always been doomed to failure may be a relevant ingredient militating against displacement of the general rule in CPR 38.6 (see the Waksman principles, at number (3)).  However, in the absence of my having formed the view that it was plain that the claim would have failed, a merits assessment should not form part of the discretion exercise which I must perform (see Beatson LJ in Nelson’s Yard Management), particularly when I am ill-equipped to make that assessment having heard only part of the evidence which would have been deployed but for the discontinuance.  I therefore place to one side, Mr de Navarro’s submissions in connection with the merits of the claim. 
b)	Change of circumstances
20.	Before the presumption is displaced, it is clear that I must find that there has been a change of circumstances (and if so, separately, that I find that it is due to the unreasonable conduct of the Defendant, see below) to which the Claimant has not contributed.  I find that there has been a change of circumstances as a consequence of the new evidence which was elicited at trial.  The new evidence had a direct bearing upon the Claimant’s case and its effect was to shut down the claim on factual causation.  Mr Mylonas found himself confronting a new factual scenario in respect of which he had no effective means of challenge.  The time interval stated by Professor Hildick Smith of two weeks for his obtaining the records was unassailable given the explanation that the cardiology and general medical units were on two sites and the absence of any centralised computer storage of records.  I accept Mr Mylonas’ argument therefore that the effect of the new evidence was that there was a change in circumstances and, as he put it in his submissions on costs, his case was as a result “holed beneath the waterline”.  
21.	Nor do I find that the Claimant or his team contributed to the change in circumstances.  Mr Mylonas no doubt, in the absence of any evidence to the contrary, considered he was on safe ground in putting to Professor Hildick Smith that he should have personally reviewed the TOE report.  I do not therefore accept Mr de Navarro’s submission that the fact that the new evidence was elicited in cross examination supports the application of the CPR 38.6 presumption.
b)	Unreasonable conduct on the part of the defendant
22.	Mr Mylonas submits that his case on the mechanism for referral was clear from his pleadings.  I do not accept this, see paragraph 6(a) above.  His pleading was ambiguous.  However, I also find that any ambiguity in his case was dispelled by the time of service of Dr Saltissi’s report of December 2017.  That report made absolutely clear that the alleged failure to refer was levelled at the cardiology team of Professor Hildick Smith, rather than at Dr Jones and his team (see paragraph 9.5 and paragraph 9.7 of that report).  Dr Saltissi set out that “there was a failure by the cardiology team to follow up the atrial abnormalities found on the echo and TOE” and “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”.
23.	Following service of this report, it was incumbent upon the Defendant to review the claim.  Even if, up to that point, Professor Hildick Smith’s request for the notes and the Claimant’s loss to follow up, were not considered by the Defendant to be relevant, those facts had become highly relevant following Dr Saltissi’s December 2017 report.  A further statement amplifying Professor Hildick Smith’s involvement in the Claimant’s case should have been served at the latest following the Saltissi report together with an amended pleading.  If, alternatively, Professor Hildick Smith’s further involvement following his consideration of the TOE on 6th May 2012 was not known to the Defendant, then I accept Mr Mylonas’ submission that it should and would have been had the witness been adequately proofed.  I accept Mr Mylonas’ submission that, by oversight, salient details were omitted from the witness evidence.  This failure to set out the full story was unreasonable.   I note that no explanation for the absence of this evidence has been provided by the Defendant at any stage. 
24.	For these reasons, I therefore conclude that, on the unusual facts of this claim, the default position that, following discontinuance, the claimant should bear the entirety of the defendant’s costs should be displaced.  I accept that the threshold for rebutting the presumption in CPR 38.6 is high, but I find that the threshold has been reached in this case.  
25.	However, I make two modifications to the order which is sought by Mr Mylonas.  
26.	First, given that his case was clarified by the report of Dr Saltissi dated December 2017, I order that the Claimant should bear the costs in the usual way up to the date of service of that report (rather than from the date of exchange of witness evidence as advanced by Mr Mylonas).  
27.	Secondly, the order which I make from the date of service of the Saltissi report is one of no order for costs.  Both parties accept that I have a broad discretion as to the appropriate and fair costs order.  In his brief oral submissions in the wake of his discontinuance Mr Mylonas contended that, in the alternative to his recovering his costs from the date of exchange of witness statements, I should make no order as to the costs from that date.  In my judgment, this is the appropriate and fair order to make in all the circumstances.  The Claimant could have made a request for further particulars to clarify when Professor Hildick Smith annotated the TOE report with “Notes please.”  Although it may have been assumed by the Claimant’s team that the annotation was made later in the Claimant’s history, it was open to the Claimant’s team to seek further clarification on the point and this would have been the only safe course.  In these circumstances, the fair order is that each party should bear its own costs from the date of service of Dr Saltissi’s report.  
28.	I therefore order that the Claimant bears the costs up to the date of service of Dr Saltissi’s report of December 2017 and that thereafter there is no order for costs.  I invite the parties to draw up the appropriate Order giving effect to this ruling.